Michele Laraine Hicks by next friend State Trustee Ltd v John Keith Burstall as executor of the estate of Robin Stanley Burstall - [2021] WASC 167

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MICHELE LARAINE HICKS by next friend STATE TRUSTEE LTD -v- JOHN KEITH BURSTALL as executor of the estate of ROBIN STANLEY BURSTALL [2021] WASC 167
CORAM:   MASTER SANDERSON
HEARD:   6 MAY 2021
DELIVERED          :   2 JUNE 2021
PUBLISHED           :   2 JUNE 2021
FILE NO/S:   CIV 2037 of 2020
BETWEEN:   MICHELE LARAINE HICKS by next friend STATE TRUSTEE LTD
Plaintiff
AND
JOHN KEITH BURSTALL as executor of the estate of ROBIN STANLEY BURSTALL
Defendant

Catchwords:

Family Provision Act 1972 (WA) - Application for extension of time to bring proceedings - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Leave granted

Category: B

Representation:

Counsel:

Plaintiff	:	P Mendelow
Defendant	:	M S Macdonald

Solicitors:

Plaintiff	:	Fort Knox Legal
Defendant	:	Macdonald Rudder

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

Farrell v Allregal Enterprises Pty Ltd [No 3] [2011] WASCA 247
Knatchbull v Fowle [1876] 1 Ch 604
Rhodes v Swithenbank [1889] 22 QBD 577
Wheatley v Wheatley [2018] WASCA 34; (2018) 17 ASTLR 99

MASTER SANDERSON:

This was the plaintiff's application for an extension of time to bring proceedings under the Family Provision Act 1972 (WA). It is a slightly unusual case as it is brought by a next friend contrary to the wishes of the prospective beneficiary if leave is granted. Apart from anything else, that has led to an unusual procedural history. I will deal with these issues below. But at the outset I should make some comment about the way in which this matter has proceeded.
The estate is very small - around $400,000. There have been 17 affidavits filed in support of and in opposition to the application. Even allowing for the tight rein kept on expenses in matters such as this, this application and any subsequent hearing of the substantive application will seriously deplete the funds available to beneficiaries and potential beneficiaries. The size of the estate is one of the factors to be taken into account in determining whether leave ought be granted. It was a factor upon which great reliance was placed by the defendant. The principles of proportionality demand in a case such as this that the affidavit evidence be kept to a minimum. It is true that if leave is granted - and I am satisfied it should be - the affidavit material already filed can be used in the main proceedings. But even so, the extent of the affidavit material filed is out of all proportion to the matters at issue, particularly having regard to the size of the estate.
Turning then to the application itself, when it was filed the plaintiff was named as Michele Laraine Hicks. The defendant filed a memorandum of conditional appearance. In the memorandum of conditional appearance there appears the following:
The defendant's appearance is conditional, without prejudice to an application to set aside the originating summons dated 15 October 2020 herein on the basis that the plaintiff, a person under a disability, must not bring proceedings in this Honourable Court save by a next friend (Order 70 rule 2(1)).
This led to the filing of an amended originating summons. The only amendment to the originating summons was to alter the name of the plaintiff to read 'Michele Laraine Hicks by her next friend State Trustees'. The parties then filed a consent order pursuant to which the amended originating summons was substituted for the original. The appearance then became unconditional and the parties continued with the application.
Procedurally this was irregular. Order 70 r 1 of the Rules of the Supreme Court 1971 (WA) is in the following terms:
1. Terms used
In this Order unless the contrary intention appears -
GAA Act means the Guardianship and Administration Act 1990;
person under disability means -
(a)a person who is an infant; or
(b)a represented person; or
(c)a person not being a person referred to in paragraph (a) or (b), who, by reason of mental illness, defect or infirmity, however occasioned, is declared by the Court to be incapable of managing their affairs in respect of any proceedings to which the declaration relates;
represented person means a person in respect of whom a guardian or administrator has been appointed under the GAA Act with authority to do either or both of the following -
(a)as the next friend of the represented person, to commence, conduct or settle on behalf of the represented person specified proceedings, some proceedings or all proceedings;
(b)as the guardian ad litem of the represented person, to defend or settle specified proceedings, some proceedings, or all proceedings, that are taken against the represented person.

Ms Hicks does not fall within any of the sub-categories referred to in the definition of 'person under a disability'. She is subject to an order made in Victoria and the reference to State Trustees in the amended originating summons is a reference to a Victorian entity which was appointed to manage Ms Hicks' affairs by the Victorian Civil and Administration Tribunal (VCAT). Given Ms Hicks does not fall within the terms of r 1, r 2 then has no application.
It would appear O 70 r 3(4) allows a next friend to be appointed by the court. If that appointment is made then the documents referred to in subrules (7) and (8) need not be filed. In this case, a consent of the State Trustees to act as the next friend of Ms Hicks was not lodged. Nor was any application filed to have State Trustees appointed as Ms Hicks' next friend. There is no point in dwelling on this procedural irregularity. It was not a point taken by the defendant. However, for the avoidance of doubt I will make an order that State Trustees be appointed the next friend of Ms Hicks. The order will operate nunc pro tunc.
Robin Stanley Burstall (the deceased) died on 23 October 2011. He left a will dated 16 March 2010. A copy of the will appears as attachment SM5 to the first affidavit of Sneh Nand sworn 14 October 2020. Ms Nand is a senior personal financial consultant employed by State Trustees Limited (State Trustees). State Trustees act as the administrator of the financial affairs of the plaintiff. By cl 1 of the will the deceased appointed the named defendant as his executor. The operative part of the will is cl 3. It reads as follows:
3.I DEVISE AND BEQUEATH unto my trustee all my real and personal estate of whatsoever kind and wheresoever situate upon trust to sell (subject to this will), call in, collect and convert into money such parts thereof as shall not consist of money and to invest the net proceeds of such calling in and conversion on behalf of the beneficiaries of this my will in a fund (the Fund) to distribute as follows:-
3.1Of the annual income from the Fund my trustee shall each year distribute half (the balance to be reinvested in the fund) amongst the following as tenants in common in equal shares:
To my daughter ROBYN MICHELE BURSTALL (Robyn), my son STEVEN JEFFREY BURSTALL and my former de facto spouse MICHELE LARAINE HICKS (to be paid to the Melbourne State Trustee on her behalf).
Should any of the abovenamed beneficiaries predecease me or thereafter die such persons share of the income shall cease upon death and shall each year thereafter be reinvested in the Fund.
The above bequests shall cease on the 30 June next following 21 years from the date of my death.
3.2The rest and residue of my estate including any undistributed income shall vest as follows:
(A)one half to any child or children born to Robyn before the date of twenty one years from the date of my death and if more than one to be shared between them equally to vest when each shall live to attain the age of twenty-one years as to one half and the balance upon each attaining the age of twenty-five;
(B) the other half of my estate to the children born to Steven before the date of twenty one years after my death and if more than one to be shared between them equally and vest when each shall attain the age of twenty-one years as to one half and the balance upon attaining the age of twenty-five.
PROVIDED that should neither Robyn or Steven have any children within 25 years of my death they shall at that time each be entitled to half of my estate as shall survive me. Should one have children and the other not at the twenty-fifth anniversary of my death each child shall receive a quarter of my estate as shall survive me and live 25 years after me. Should one child not live for 21 years after my death and leave no child or child who attains a vested interest hereunder then his or her share shall go to the child or children (and if more than one equally) of the survivor who shall live to attain the age of 25.
For the purposes of this my will child and children shall mean a natural child of my children and not including any adopted children or step-children[.]
Although cl 3 is not easy to interpret, counsel were in the end agreed as to its effect. It establishes a testamentary trust. The trustee of that trust is the defendant - that appointment is made by cl 1. Each year the income derived from the fund is to be divided equally between the deceased's two children, Robyn and Steven, and Ms Hicks. So if the income from the fund was $600, the trustee was obliged to pay to each of the three named beneficiaries $200 a year.
The deceased's daughter Robyn has passed away. That means the second limb of cl 3.1 is activated. So if the income from the trust fund was $600 per annum the trustee would be required to pay $200 to each of Steven and Ms Hicks and reinvest $200 with the trust. In other words, the trust fund will keep on growing annually at the rate of one‑third of the income generated by the trust.
Pursuant to cl 3.2 of the will, the trust vests 21 years after the date of death of the deceased - that is to say it vests on 23 October 2032. As Robyn Burstall died without issue the persons entitled on vesting are the children of Steven of whom there are two. The proviso to cl 3.2 does not operate and can be put to one side.
Before dealing with the factors to be taken into account in exercising the discretion to grant an extension of time under s 6(2) of the Family Provision Act, I should deal with an issue to do with jurisdiction raised by the defendant. In written submissions, counsel for the defendant raised the matter in this way:
1.The plaintiff has not filed any affidavit in the application. Her estate is being administered by her alleged next friend because she cannot manage her financial affairs. There is nothing to suggest she cannot testify in the matter. On the contrary, all affidavits attest to her competence to do so; to communicate, discuss, travel and live independently.
2.The plaintiff was put on notice at the outset that she must give evidence on her own behalf, and that the affidavit of Sned Nand sworn 14 October 2020 was largely inadmissible.
3.For this reason alone the application should be dismissed. If that is wrong it should be dismissed because there is no evidence that the plaintiff is a person under disability as defined in O 70.1 of the Rules of the Supreme Court 1971 (WA). If that is wrong, the defendant relies on the submissions that follow. (footnotes omitted)
There are a number of different concepts raised by these submissions. They are:
1.Is it proper and appropriate State Trustees should act as the next friend of Ms Hicks?;
2.Does the fact no affidavit has been filed by Ms Hicks render the application incompetent?; and
3.Is the fact Ms Hicks does not fall within O 70 r 1 fatal to her application?
The last of these questions has already been answered. Furthermore the defendant by entering into the consent order and agreeing the action should be in the name of Michele Laraine Hicks by her next friend State Trustee appears to have waived any objection on this issue. As to the second question, there is nothing in s 6 or elsewhere in the Act which would require Ms Hicks to file an affidavit. It is usually the case this is done but it is not mandatory. The failure to file such an affidavit even in the face of a demand by the defendant she do so, does not in and of itself vitiate the proceedings.
The issue raised by the first question does require further consideration. Appearing as annexure SN‑2 to the affidavit of Ms Nand, sworn 14 October 2020, is a copy of the order of the VCAT dated 16 November 1993. It appears State Trustees were appointed in what we in this jurisdiction would refer to as a plenary administrator. The order has been reviewed at least once and is due to be reviewed on 30 June 2021. But, at present, the administration order is of full force and effect. Further, in relation to these proceedings, on 6 January 2020 the Tribunal authorised State Trustees to obtain legal advice in relation to Ms Hicks' claim.[1] Having received that advice, State Trustees sought a further order approving this application. That order was made on 10 March 2020.[2] That being so, it cannot be said State Trustees are acting improperly. At least so far as Victorian law is concerned, they are acting within the scope of their authority.
[1] Affidavit of Ms Nand sworn 14 October 2020, annexure SN-22.
[2] Affidavit of Ms Nand sworn 24 February 2021, annexure SN3-1.
It would seem that Ms Hicks personally does not wish to bring these proceedings. Appearing as annexure SJB1 to an affidavit of Steven Jeffrey Burstall, sworn 13 April 2021, is the following statement which was signed by Ms Hicks on 25 February 2021:
To whom it may concern,
My relationship with Rob was complicated yet simple. We seen each other on and off for 18 months before the birth of our first child Steven. In these 18 months Rob was also seeing a lady named Lisa Garvis as well. I lived with my mother at the school house at this time in Punt Rd. Once I had Steven Rob moved to Bellevue with his parents and worked at their family driving school. I brought Steven over to Rob from Victoria and at this time we conceived Robyn my daughter. Whilst on this trip I also caught Rob sleeping with a lady named Lynne. I flew back to Melbourne and gave birth to Robyn while Rob was in Western Australia. I cared for both my children on my own in Melbourne up until I had a breakdown. Robyn was nearly 3 and Steven 4. Annie Grant from government services took my children and I was taken to a mental hospital 'Bundoora'. After about 6 months Rob was granted sole custody and then began caring for the kids. I am still being treated for schizophrenia. After this time we both shared a simple bond based around our children. Every year I made 2 maybe 3 trips back and forth to Perth. During these trips I payed Rob $50 board. On these trips Rob would sometimes kick me out. I also stayed in Bellevue where I had a unit, a flat in Balga, I had stints in St Bartholomew's and also stayed at the Midland caravan park to be close to my children. My longest stint in WA was when Rob and Steven were in Beverley and Rob was diagnosed with cancer. Steven had his caravan out the front and I had a spare room down the hall. Before Rob passed we cared for him and visited him whilst in and out of hospitals. At this stay the state trustee's were paying Rob board into his account. Our finances were always separate throughout the years.
Lastly I hope everyone respects Rob's will and his last wishes as I do.
Michele Hicks.
As was noted by counsel for the defendant in his submissions, the evidence suggests that while Ms Hicks may not be competent to manage her financial affairs, she does have capacity in other areas. Counsel for the plaintiff objected to the affidavit of Mr Burstall and the annexure which I have quoted above. But this is an interlocutory application and the parties are entitled to put before the court material which is hearsay. I received the quoted statement not as proof of what Ms Hicks says in the statement but rather on the basis she has produced a statement to that effect. It may or may not be correct. But for the purpose of this application it is part of the evidentiary material. The question is what use is to be made of it.
At least by implication, this raises the question of the role of a next friend. There is remarkably little authority on this question. Most of the commentary refers, first and foremost, to the decision of the English Court of Appeal in Rhodes v Swithenbank.[3] The lead judgment in this case was given by Lord Esher MR and is, in the fashion of the times, commendably brief. Really the ratio of the decision is contained in one sentence:
This is an action by an infant by means of her next friend, who undoubtedly has the conduct of the action in his hands (578).
[3] Rhodes v Swithenbank [1889] 22 QBD 577.
Lord Justice Bowen, who agreed with Lord Esher, notes that the next friend is an officer of the court.[4] What is clear from the judgment is that the next friend must act in the best interests of the person under a disability. So their Lordships allowed an appeal against a decision of the next friend to enter into a compromise in relation to costs because costs could not be recovered from the infant and the compromise was not to her benefit.
[4] Rhodes v Swithenbank 577, 579.
The only other case which seems to deal with the powers of a next friend is the decision of Knatchbull v Fowle,[5] but that authority really takes the matter no further. In this jurisdiction, the position of a next friend was considered in Farrell v Allregal Enterprises Pty Ltd [No 3],[6] but the issue there was slightly different. The actual powers of a next friend were not at issue.
[5] Knatchbull v Fowle [1876] 1 Ch 604.
[6] Farrell v Allregal Enterprises Pty Ltd [No 3] [2011] WASCA 247.
In dealing with this matter the starting point is to recognise a person under a disability is not recognised by the law as having capacity to manage litigation in his or her own right. Thus a person under the age of 18 must act with a guardian ad litem. There would be many individuals under the age of 18 who are more than capable of managing their own affairs but the law has a blanket rule which is reflected in O 70. So what then happens if an individual and his or her guardian are at odds? Who is it who can give the instructions and direct the case? Is it the person for whose ultimate benefit the action is taken; or is it the guardian entrusted with the conduct of the proceedings and obliged in his or her capacity as an officer of the court to act in the best interests of the person under a disability?
The answer has to be the power rests with the guardian. In this case, VCAT has determined Ms Hicks does not have the capacity to manage her affairs. It may well be the case she does not wish to bring these proceedings because it may alienate her son. But State Trustees, the body charged with managing her affairs and looking after her financial interests, takes a different view. The reasons for the dichotomy are clear but irrelevant. It must be the party entrusted with the responsibility for the financial affairs of Ms Hicks who makes the decision whether to proceed or not.
In reaching this conclusion, I am mindful State Trustees are not acting entirely of their own motion. They have sought the approval of VCAT. That approval has been given. While it may not be the determination of a court, it is a determination of a specialist administrative tribunal. There would need to be some special circumstance to justify ignoring that approval.
That then leads to the question of whether the discretion to extend the time should be exercised. In considering these discretionary matters I have borne in mind that the time limit in the Family Provision Act is substantive and it is for the applicant to establish the extension ought be granted. The leading case in this area is Wheatley v Wheatley.[7] In resolving this matter I have had the principles of that case firmly in mind.
[7] Wheatley v Wheatley [2018] WASCA 34; (2018) 17 ASTLR 99.

The defendant's opposition to this application focused on three main points. First, the length of the delay. This matter was not forcefully pressed but the length of the delay was highlighted and it must always be a relevant consideration in an application such as this. Second, there was the size of the estate. Finally, and from the defendant's point of view, most importantly, there was the strength of the plaintiff's claim.
Probate of the deceased's will was granted on 18 September 2014, almost three years after the death of the deceased. That meant the time limit for bringing this application expired in mid-March 2015 and the application was not brought until mid-October 2020. While the delay is not insignificant, I am satisfied the explanation provided is adequate. In her various affidavits, Ms Nand goes into great detail about the investigations made by State Trustees and the steps taken to obtain information which would allow a decision to be made as to whether an application ought be brought. I need not detail these various steps. While it is true that the matter could have been pursued with more expedition, it is always to be borne in mind Ms Hicks is a person under a disability. That fact, together with the steps that were taken by State Trustees, satisfies me on balance there is an adequate explanation for the delay.
Earlier in these reasons I have mentioned the size of the estate. Even if leave is granted, the amount Ms Hicks would receive would be very modest and would not make any real difference to her day-to-day life. Counsel for the defendant submitted in effect the benefit ultimately derived by Ms Hicks from any successful claim simply did not justify leave being granted.
As part of this submission counsel referred to the prospect Ms Hicks would inherit a significant estate from her mother, Laraine, when she passed away.
Mrs Hicks has sworn affidavits in support of this application. While it may well be the case her daughter would benefit upon her demise, that is not a factor which can be taken into account on this application. None of the authorities suggest the prospect of a future inheritance is a factor to be weighed in the balance. It may be a factor which feeds into the strength or otherwise of the claim. But otherwise it is not a discretionary consideration I have taken into account.
While the estate in this case is small, and while it is inevitable the estate will be diminished by litigation, I am not satisfied that in and of itself is decisive. In weighing the factor in the balance, I would accept it is to be seen as against the grant of leave but only marginally so.
That leaves the question of the strength or otherwise of the claim. The authorities are to the effect an applicant for leave must demonstrate an arguable case. The court does not have to consider whether it is a strong case or a weak case. The question is whether it is arguable. The test might be seen as akin to that applying on a summary judgment application - is there a serious question to be tried? It is not a high threshold for an applicant to overcome.
In this case, the defendant focused on whether or not Ms Hicks was properly regarded as the de facto partner of the deceased immediately before the deceased's death.
The defendant in written submissions summarises the position this way:[8]
[8] Defendant's submissions opposing extension filed 20 April 2021, [11] – [21].
In affidavits filed to date on behalf of the plaintiff, it is asserted in effect that the plaintiff is entitled to apply under the FPA, because she was a de facto partner of the deceased immediately before the death of the deceased (s 7(1)(a)).
The affidavit of Steven Burstall (the son of the plaintiff and the deceased) records the relevant events, summarised in the defendant's chronology). The relationship between the deceased and the plaintiff broke down in around 1990/1991. The deceased moved to Western Australia and the plaintiff remained in Victoria with her children until she suffered a breakdown, there was a custody battle, and in about 1992 the deceased obtained custody of the children who then moved to live in WA. The assertion of custody is a fact within the power of the plaintiff, by her next friend, State Trustees Ltd, to confirm or contradict.
Initially (until 1994) the plaintiff travelled to Perth to see her children, staying in rented accommodation. From about 1994 she stayed with her children at the deceased’s house for visits of 2-3 weeks twice a year.
The deceased drew a disability support pension for a single person at the date of his death. The plaintiff was put on notice to disclose the status of the plaintiff’s pension.
The deceased's bank statements between May and October 2011, disclose a deposit of $130 every week by the State Trustees.
State Trustees take a commission on all income and capital of the plaintiff's estate.
On the plaintiff's evidence she started a de facto relationship with the deceased in Victoria in about 1985. This fact is not in issue.
It is common ground that the plaintiff and the deceased had two children, Steven in 1988 and Robyn in 1990.
The defendant says that the relationship ended in about 1991 with the defendant moving to Western Australia. The plaintiff says, by third parties, that the relationship continued until death. This is asserted notwithstanding:
(a)The deceased left the plaintiff in Victoria;
(b)The plaintiff had a breakdown that led to the appointment of an administrator of her estate in February 1993 that continues to this day.
(c)The deceased obtained sole custody of the children who moved to WA and lived with him.
The plaintiff has not taken issue with any of these facts.
On the evidence of the defendant, the plaintiff visited her children in WA on a regular basis, and, after 2001, for the most part lived with them (and the deceased) on these visits, for short periods (2-3 weeks) until after the deceased was diagnosed with cancer in late 2009. (footnotes omitted)
It is the defendant's position the de facto relationship ended with the custody battle. Further it is said there was no common residence, no evidence of a sexual relationship, no financial dependence or interdependence or any arrangements for financial support between Ms Hicks and the deceased. There was no common property and no evidence of any degree of mutual commitment by them to a shared life as a couple. Reference is made by the defendant to the affidavit of Steven Burstall sworn 13 April 2020. It should also be noted in his will the deceased referred to his 'former de facto wife'.
Against all of that, there is evidence that after the deceased was diagnosed with cancer, Ms Hicks lived with and cared for him. It must be said the precise nature of the relationship is uncertain. But on the state of the evidence at the moment and given what I have to determine on this application, I could not conclude that the claim of a de facto relationship is unarguable. The fact is Ms Hicks and the deceased had a relationship which produced two children. They appear to have maintained some sort of relationship when they were geographically separated. That relationship was of sufficient strength to draw Ms Hicks back to Western Australia to support the deceased in his battle with cancer. Taken in the overall, I am of the view it is arguable Ms Hicks was the de facto partner of the deceased at the time of the deceased's death.
In all the circumstances and weighing all factors in the balance, I am satisfied this is a case for the grant of leave. On publication of these reasons the parties should confer and attempt to agree orders. In relation to costs my preliminary view is that costs ought be in proceedings issued under the Family Provision Act. Any party who seeks a different costs order should file short written submissions within 7 days of the publication of these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to Master Sanderson
2 JUNE 2021