Miller v Miller

Case [2018] SASCFC 40

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

MILLER v MILLER & ANOR

[2018] SASCFC 40

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Bampton)

23 May 2018

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SERVICE AND AUTHORITY OF SOLICITORS

SUCCESSION - FAMILY PROVISION - PROCEDURE - TIME FOR MAKING APPLICATION - GENERALLY - SOUTH AUSTRALIA

SUCCESSION - ADMINISTRATION OF ESTATE

Appeal against a decision of a Judge of this Court that the action filed on 21 August 2015 pursuant to the Inheritance (Family Provision) Act 1972 (SA) was not serviced within time pursuant to Rule 65 of the Supreme Court Civil Rules 2006 (SA) because that Rule only operates if an order for service on an agent is given prospectively. The Judge also held that service pursuant to Rule 67(1)(c) is only effective if the solicitor issues an acknowledgement of service.

Held (per Kourakis CJ, Nicholson J agreeing, dismissing both the appeal and the Notice of Alternative Contention):

1. Even if SCR 65 allowed permission to be given retrospectively, a delivery of the documents before obtaining that permission cannot be effective for the purposes of s 8 of the IFP Act (at [14]).

2. Section 8(6) of the IFP Act does not retrospectively treat the delivery of a summons within the prescribed time as valid service if it was not, at the time of delivery, effective service in accordance with the Rules as they then stood (at [21]).

3. On a proper construction, s 48 of the Limitation of Actions Act does not apply to s 8(1) of the IFP Act because the IFP Act enacts a specific code for the purpose of protecting the proper administration of estates (at [26]).

4.  There is no reason, in the circumstances of this case, to ignore the other communications between Ms Yule and Cheryl on which the Judge relied which demonstrate that by 24 August 2015 the retainer was extended to include the defence of the TFM action (at [31]).

Held (per Bampton J, allowing the appeal, dismissing the Notice of Alternative Contention):

1.  The requirement that Adelta issue an acknowledgment of service should be dispensed with pursuant to r 117(2)(a).

2.  The defence filed by the first respondent 15 October 2015 is an answering document for the purposes of r 67(2) giving rise to a presumption of personal service on 24 August 2015.

3.  The first and second respondents’ conduct prior to filing the amended defences pleading that the applicant was served outside of the six month limitation period amounts to a submission to the jurisdiction of the Court to hear the application.

4.  A declaration should be made that the appellant’s application was served on the first respondent within six months of the grant of probate.

Inheritance (Family Provision) Act 1972 (SA) ss 7, 8, 17; Supreme Court Civil…

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Miller v Miller [2018] SASCFC 40
Case
[2018] SASCFC 40
Decision Date

CaseChat Overview and Summary

This case concerned an appeal from a decision of a single judge of the Supreme Court of South Australia regarding the service of an application for provision out of a deceased estate. Colin Miller, as applicant, sought provision from his father John Miller's estate. The respondents, Cheryl Miller (as executor and beneficiary) and Robert Miller (as beneficiary), contended that Colin's application was not served within the six-month time limit prescribed by section 8 of the *Inheritance (Family Provision) Act 1972* (SA).

The primary legal issue before the Full Court was whether Colin's application had been validly served on Cheryl within the statutory time limit. This involved determining whether Cheryl's solicitors, Adelta Legal, had the authority to accept service on her behalf and, if so, whether the procedural requirements for effecting service had been met, particularly in light of Adelta's failure to issue an acknowledgment of service. The respondents also raised a notice of alternative contention, arguing that Cheryl's retainer with Adelta did not extend to accepting service and that this was irrelevant to the determination of the preliminary issue.

The Full Court, by majority, allowed Colin's appeal. It held that, in the particular circumstances, the Court should exercise its discretion under rule 117(2)(a) of the Supreme Court Civil Rules 2006 (SA) to dispense with the requirement for an acknowledgment of service. Furthermore, the Court found that the filing of Cheryl's defence on the merits of Colin's application, without initially pleading the issue of service outside the limitation period, was sufficient for the presumption of service under rule 67(2)(a). The Court also concluded that by their conduct, including pleading to the merits and participating in interlocutory steps, Cheryl and Robert had submitted to the Court's jurisdiction to hear Colin's application.

Orders

Orders of the court

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Background

Background to the litigation

Finally, I would dismiss the notice of contention.Background It is necessary to set out the background, communications between the parties, and interlocutory history to explain why I would allow the appeal. Elsie Miller (“Elsie”) died on 12 April 2013 and her husband John Miller (“John”) died on 1 December 2014. They are survived by three children, Cheryl, Colin and Robert. In July 2011, Elsie, who suffered Parkinson’s disease and dementia, was moved to hospice care pursuant to a Guardianship Board order. John was admitted to the same hospital in August 2011 with age related dementia and partial blindness. On 9 December 2011, Elsie made a will leaving her estate to John and, in the event he did not survive her, in equal parts to Cheryl and Robert. On the same date, John made a will leaving his estate to Elsie and, in the event she did not survive him, to Cheryl and Robert. Cheryl is appointed executor in both Elsie and John’s wills. Colin is specifically excluded from both Elsie and John’s wills. Whilst the issue of testamentary capacity is not before this Court, I query whether John in particular had capacity at the time he made his will. Colin and Cheryl have an acrimonious relationship and it would appear they were, in the last few years before their parents’ death, in dispute regarding which of them should have power of attorney for their parents. Ultimately, on 29 March 2012 the Guardianship Board made an Administration Order appointing the Public Trustee full administrator of Elsie’s estate. The Public Trustee was appointed full administrator of John’s estate by the Guardianship Board on 21 June 2012.Cheryl as executor of Elsie’s will institutes misappropriation proceedings against Colin Following Elsie’s death, probate of her will was granted to Cheryl on 16 August 2013. On 30 June 2014, Cheryl instructed Melissa Yule of Adelta to institute Action 807 of 2014 against Colin alleging he had fraudulently misappropriated Elsie’s assets (“the misappropriation proceedings”).Colin seeks of copy of John’s will Following John’s death on 1 December 2014, on 3 December 2014 Colin, who lived in Victoria, instructed Sandy Rizkallah of Armstrong Legal in Melbourne to act for him in relation to John’s estate and to request a copy of John’s will and details of the estate’s assets and liabilities from Cheryl’s solicitor. On 3 December 2014, Ms Yule informed Cheryl that Colin’s solicitor had written to her requesting a copy of John’s will and details of the assets and liabilities and that Colin intended to make a claim under the Act. Cheryl instructed Ms Yule not to provide the requested information at that stage because she considered the request was callous so soon after John’s death.Cheryl instructs Adelta to act The Judge found that on 3 December 2014 Cheryl and Ms Yule discussed Colin’s intention to make a family provision claim pursuant to the Act.[10] The Judge also found that Cheryl conferred on Adelta a general authority to act as solicitors of John’s estate in relation to the obtaining of probate, the misappropriation proceedings and defending Colin’s foreshadowed application under the Act.[11] [10] Miller v Miller [2017] SASC 37 at [80].[11] Miller v Miller [2017] SASC 37 at [81].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the above reasons I would dismiss the respondent’s Notice of Alternative Contention. Conclusion I would dismiss the Appeal and the Notice of Contention. NICHOLSON J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice. BAMPTON J: Colin Miller (“Colin”) made application (“Colin’s application”) for provision out of his father John Miller’s estate for his maintenance, education or advancement in life pursuant to the Inheritance (Family Provision) Act 1972 (SA) (“the Act”) by issuing these proceedings on 21 August 2015 against his sister Cheryl Miller (“Cheryl”) as executor and beneficiary of, and his brother Robert Miller (“Robert”) as beneficiary of, their father’s estate. Just over a year after the institution of Colin’s application and having filed defences pleading to the merits of Colin’s claim, Cheryl and Robert amended their defences to plead that the application had not been served within six months of the grant of probate in compliance with s 8 of the Act. Probate of John Miller’s will was granted to Cheryl on 24 February 2015. The last day for service of the summons by which Colin’s application was instituted on Cheryl as executor of the estate in accordance with s 8(6) of the Act was 24 August 2015. The amended defences plead that Cheryl was not informed of the existence of the summons or the fact of the commencement of the proceedings until 27 August 2015 and did not receive a copy of Colin’s application until 11 September 2015. Accordingly, Cheryl and Robert assert that Colin is not entitled to have his application heard by the Court. The issue of whether Colin’s application was served on Cheryl within six months of the grant of probate was heard by a Judge of this Court as a preliminary issue. The Judge determined that the law firm, Adelta Legal (“Adelta”), had authority from Cheryl to accept service of Colin’s application. However, as Adelta did not issue an acknowledgment that it had accepted service in accordance with r 67(1)(c) of the Supreme Court Civil Rules 2006 (SA) (“the Rules”), the Judge found that the delivery of the summons and other initiating documents to Adelta was not effective service. Accordingly, the Judge held that Colin’s application was not served on Cheryl within six months of the grant of probate. Colin now appeals that decision on the preliminary issue. Cheryl and Robert, by notice of alternate contention, contend that the Judge’s decision should be upheld on grounds that the terms of Cheryl’s retainer with Adelta did not extend to Adelta accepting service of Colin’s application and that the terms of that retainer are not relevant to the determination of the preliminary issue. For the reasons that follow, I would allow the appeal on grounds that:·in the particular circumstances of this matter, the Court should exercise its discretion pursuant to r 117(2)(a) to dispense with the requirement that an acknowledgment of service issued by Adelta is necessary to effect service on 24 August 2015;·the filing of Cheryl’s defence on 15 October 2015 was sufficient for the presumption of service on 24 August 2015 pursuant to r 67(2)(a); and·Cheryl and Robert by their actions submitted to the Court’s jurisdiction to hear Colin’s application. In pleading their defences, Cheryl and Robert did not raise the issue of service outside of the limitation period as they were obliged to in compliance with r 100 of the Rules. Rather, they pleaded to the merits of Colin’s application and alleged he had engaged in disentitling conduct. When the issue was raised, it was couched amongst other submissions filed on 11 May 2016 seeking dismissal of an interlocutory application brought by Colin under the heading “Part III – The proceedings were likely served out of time in any event”.Once the time issue was raised it took a further three months for application to be made to amend the defences. The combination of the filing of defences to the merits of Colin’s application, the failure to plead the application was served outside the six month limitation period, and the participation in interlocutory steps progressing the matter to trial, in my view amount to Cheryl and Robert having accepted that the Court has jurisdiction to try Colin’s application. In other words, by their actions they submitted to the jurisdiction. All of their conduct from late August 2015 until the filing of the application seeking permission to amend their defences was consistent with an intention to defend Colin’s application and have the case proceed to trial.

Ratio Decidendi

Legal Principle Established

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