Miller v Miller
[2018] SASCFC 40
•23 May 2018
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 Rules 2006 (SA) rr 23, 24, 39, 58, 65, 66, 67, 92, 100, 117, 314, 317; Supreme Court Civil Rules 1987 (SA) (no longer in force) rr 12.03, 21.06; Federal Court Rules 2011 (Cth) r 10.22; Limitation of Actions Act 1936 (SA) s 48; Supreme Court Civil Supplementary Rules 2014 (SA) sch 3, referred to.
Miller v Miller [2017] SASC 37, applied.
Ditfort v Temby (1990) 26 FCR 72; W & R Pty Ltd v Birdseye (2008) 102 SASR 477; SMAY Investments Ltd v Sachdev [2003] 1 WLR 1973; Sage v Double A Hydraulics Limited [1992] The Times Law Reports 165; Kenneth Allison Ltd v A E Limehouse & Co [1992] 2 AC 105, discussed.
Miller v Miller [2017] SASC 37; Brealey v Board of Management of Royal Perth Hospital (1999) 21 WAR 79; Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; Dennis v Tag Group Ltd & Others [2017] EWHC 919 (Ch); City of Swan and Another v McGraw-Hill Companies Inc and Others (2014) 223 FCR 295; Astro Exito Navegacion SA v Hsu [1984] 1 Lloyds Rep 266; The Commonwealth v Verwayen (1990) 170 CLR 394, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"to be served", "served on the agent under this rule", "served on the administrator of the estate"
MILLER v MILLER & ANOR
[2018] SASCFC 40Full Court: Kourakis CJ, Nicholson and Bampton JJ
KOURAKIS CJ: The appellant, Colin Miller (Colin) filed an action pursuant to the Inheritance (Family Provision) Act 1972 (SA) (the IFP Act) on 21 August 2015 for provision to be made out of the estate of his late father, John Miller for his own maintenance (the TFM action). A grant of probate of the last will of the deceased was made to Colin’s sister, Cheryl, on 24 February 2015. As at 1 December 2014, the net assets of the estate were $665,930, comprising of:
·$541,399 cash in bank accounts;
·$37,031 in company shares; and
·a house property at Kimba valued by the Valuer-General at $87,500.
Between April and June 2015, Cheryl distributed the company shares and $555,000 in cash to beneficiaries, including herself.
The 24th day of August 2015 was the last day of the six month period in which Colin’s TFM action could be brought without seeking an extension of time, pursuant to s 8(1) and s 8(6) of the IFP Act. On that day, the application and other documents initiating Colin’s claim were delivered by his solicitor to the offices of the legal firm Adelta Legal. The principal of that firm, Ms Yule, was given the documents by her receptionist on 25 August 2015. Adelta Legal were acting for Cheryl both as executor of John’s estate, and in proceedings brought by Cheryl on 30 June 2014, as executor of the estate of her mother, against Colin for misappropriation (the misappropriation action).
Cheryl received an electronic copy of the initiating documents by email from the office of Adelta Legal on 9 September 2015 but did not read them until 11 September 2015. During September, Cheryl instructed another firm of solicitors, RSA Law, to both defend the TFM action and prosecute the misappropriation action against Colin. RSA Law filed a notice of address for service on behalf of Cheryl in both actions on 29 September 2015 and filed a defence in the TFM action on 15 October 2015. That defence did not plead that the TFM action was brought out of time. One year later, on 9 September 2016, RSA Law filed a second defence pleading that the TFM action was brought out of time because the summons was not served within six months from the grant of probate and that no extension of time had been granted (the time bar issue).
The parties agreed to have the time bar issue determined as a preliminary issue. On the hearing of a preliminary issue Colin contended that Adelta Legal had instructions to accept service and that the TFM action had therefore been served because:
·Service was effected on Cheryl through Adelta Legal, as her agent, pursuant by Rule 65 of the Supreme Court Civil Rules 2006 (SA) (SCR 65, the Rules); or
·Cheryl’s solicitor had accepted service pursuant to SCR 67(1)(c).
A Judge of this Court held that the TFM action was not serviced within time pursuant to SCR 65 because that Rule only operates if an order for service on an agent is given prospectively. The Judge also held that service pursuant to SCR 67(1)(c) is only effective if the solicitor issues an acknowledgement of service.
Colin appeals against that decision. For the reasons which follow, the Judge’s decision should be affirmed and the appeal dismissed.
The IFP Act and the Rules
Section 8 of the IFP Act provides:
8—Time within which application to be made
(1)Subject to this section, an application shall not be heard by the Court at the instance of a person claiming the benefit of this Act unless the application is made within six months from the date of the grant in this State of probate of the will, or letters of administration of the estate, of the deceased person.
(2)The Court may, after hearing such of the persons affected as the Court thinks necessary, extend the time for making an application for the benefit of this Act.
(3) An extension of time granted pursuant to this section may be granted—
(a) upon such conditions as the Court thinks fit; and
(b) whether or not the time for making an application pursuant to subsection (1) of this section has expired.
(4)An application for extension of time pursuant to this section shall be made before the final distribution of the estate.
(5)Any distribution of any part of the estate made before the application for extension of time shall not be disturbed by reason of that application or any order made thereon.
(6)An application for the benefit of this Act shall be deemed to be made on the day when the summons by which it is instituted is served on the administrator of the estate.
(7)Where an application has been made for the benefit of this Act, the Court may, if satisfied that it is just and expedient to do so, permit at any time prior to the final determination of the proceedings, the joinder of further claimants as parties to the application.
Section 17 of the IFP Act provides:
17— Rules of Court
(1)The judges of the Court may, subject to and in accordance with the Supreme Court Act 1935 as amended, make such rules as may be necessary or expedient for regulating the practice and procedure of the Court to be adopted for the purposes of this Act.
(2)Until rules are made in pursuance of this section the general practice and procedure of the Court shall, so far as applicable and not inconsistent with this Act, apply to all proceedings of the Court under this Act.
It was common ground on the appeal that the phrase ‘served on the administrator of the estate’ in s 8(6) of the IFP Act means served in accordance with the Rules of this Court. Section 17(1) of the IFP Act confers a power to make rules but no special rules on service have been made pursuant to that provision. Section 17(2) of the IFP Act therefore picks up the general Rules as to personal service.
I observe that service of an application within the prescribed period is not a condition precedent to the exercise of jurisdiction because an extension of time may be granted pursuant to s 8(3) of the IFP Act, albeit not so as to allow any earlier distribution to be disturbed. Accordingly, service outside of the prescribed time is not irregular nor can it be set aside. It does however have procedural and substantive consequences. A failure to plead those consequences is not a ‘submission to jurisdiction’. The concept has application to irregular service, and in particular excuses any irregularity if and when a defendant waivers the requirement of personal service by voluntarily participating in proceedings. However, a party cannot waive the statutory consequences of a failure to serve within time. A party can waiver that requirement because it exists for his or her benefit in order to ensure that he or she has proper notice of the proceedings.
SCR 65 requires prospective permission
SCR 65 provides:
65—Agent
(1) A document to be served on a person may, if the Court permits, be served on an agent of that person.
(2) A document served on an agent under this rule is taken to have been served on the principal.
SCR 65 on its terms requires prospective permission. So much is clear from the phrase ‘to be served’ in sub-rule (1) and from the terms of sub‑rule (2), which provides that it is only a document ‘served on the agent under this rule’ which has been taken to have been served on the principal. The phrase ‘under this rule’ means, in its context, pursuant to permission which had already been given under the rules.
In any event, for the reasons which I give below, 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.
SRC 67 requires an acknowledgement
SCR 67 provides:
67—How personal service effected
(1) Personal service of a document is effected if—
(a)the document is given to, and accepted by, the person to be served; or
(b)the person to be served is offered the document and, if he or she appears unwilling to accept it, is informed orally of the nature of the document; or
(c)a solicitor accepts service of the document on behalf of the person to be served (whether the solicitor is served personally with the document or not) and issues an acknowledgment to that effect; or
(d)the document is served in accordance with an agreement between the parties as to the manner of service.
(2) Personal service of a document will be presumed if—
(a)an answering document is filed in the Court or served on the party required to serve the document; or
(b)it is established in some other way that the document and its contents have come to the attention of the person to be served.
On the hearing of the time bar issue, Colin contended that Adelta Legal had actual authority or, in the alternative, implied authority, or in the further alternative, ostensible authority, to accept service of the proceedings.
Cheryl waived privilege on the issue of the conferral of actual authority on Adelta Legal. It is not clear why she did so. It appears to have been assumed that the question of the solicitor’s authority to accept service was an element of sub-rule (c) of SCR 67(1). If that were so, Cheryl presumably waived privilege so that she could call evidence to rebut the inference which might be drawn that Adelta Legal was authorized to accept service from the fact that no protest was made when the initiating process was delivered to its offices, and from the subsequent filing by Adelta Legal of a Notice of Address for Service and Defence.
On the face of it, it would be surprising if a rule as to personal service depended on the determination of the sometimes complex question of whether a solicitor had a general or implied authority to accept service. For the reasons given below the enquiry was, in that respect, conducted on a false premise.
SCR 67(1)(c) provides that personal service may be effected by an express act of acceptance by a solicitor and not by service on a solicitor who happens to have express, implied, or ostensible authority to accept service. The act of acceptance is not complete until the acknowledgement to that effect, which is an integral part of the acceptance, is given. So much is clear from the form of the predecessor rule to SCR 67. Rule 12.03 of the former Supreme Court Rules 1987 provided:
[R 12.03] Methods of personal service
12.03Any document required to be served personally shall be deemed to have been personally served where:
(a) the document is served personally by leaving a copy of the document with the person to be served, or, if he does not accept the copy or renders it impossible or impracticable to hand the copy to him, by placing the copy as near as is practicable to him and informing him of the nature of the document;
(b) the solicitor of the party served endorses a statement on the document that he accepts service of it;
(c) the party required to serve the document proves that although the document was not personally served it has actually been received by the party served;
(d) an answering document is filed or served after service;
(e) service was in accordance with an agreement made between the parties as to:
(i)place of service
(ii)mode of service, and
(iii)the person upon service may be effected.
(emphasis added)
That rule was common to other Australian jurisdictions. The former Rule provided a mutually advantageous facility whereby personal service could be effected through the solicitor of the party to be served. If a party’s solicitor agreed, on instructions, to accept service of a process, service was effected by delivery of a copy to the solicitor who endorsed on the document a statement that he or she accepted service of it.[1] On the making of the endorsement that service was accepted service was taken to have been duly effected, unless the solicitor lacked the necessary instructions. It was not open under the former rule to contend that service was effected by proving mere delivery to a solicitor who happened to have instructions to accept service.
[1] Cairns B, Australian Civil Procedure, 4th ed, The Law Book Company, 1996, Sydney, at p 119.
Under the general law service on a solicitor was also effective when the solicitor had given an undertaking to accept service and to enter an appearance. The undertaking was enforceable even if the client subsequently instructed the solicitor not to enter the appearance. The only remedy was for the solicitor to seek instructions to be released from the undertaking. An appearance entered in obedience to the undertaking was taken to cure or waive irregularities. That somewhat more cumbersome procedure has largely been obviated by provisions such as SCR 67(1)(c) which allow for an endorsement or acknowledgement of service by a solicitor. However, the former procedure shows that an express statement of acceptance is an integral element of service through a solicitor and not a mere formality.
Dispensation from the Rules
The appellant contends on the appeal, but did not contend at trial, that service is effected within six months if the Court effectively allows an extension of time by dispensing with compliance with the need for an acknowledgement under SCR 67 after the expiry of the period of six months. I reject that submission. The better reading of the words of s 8(1) of the IFP Act is that service occurs only when it is made in accordance with the Rules as they stand, including any modification made by a prospective dispensing order, as at the date of the purported act of service. 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.
The effect of reading s 8(6) of the IFP Act as contended for by the appellant is to, in effect, confer on the Court, through its power to dispense with compliance with its Rules as to service, a discretion to extend the statutory time limit prescribed by the IFP Act. That construction is inconsistent with the conditions that s 8 of the IFP Act prescribes for extending the time in which to make an application. Section 8(2) of the IFP Act conditions the power to extend time on hearing from such affected persons as the Court thinks necessary. However, granting a dispensation from the service requirement of the Rules after the expiry of six months would obviate the need for an exercise of the power in s 8(2) of the IFP Act. Even though the Court might, in its discretion, choose to hear from the same persons affected, it need not. Indeed, the Executor who is in a position to identify the persons affected may not yet be before the Court.
Section 8(5) of the IFP Act provides that a distribution made before the application for an extension cannot be disturbed. No such limitation would apply if service was in effect approved by dispensing with compliance with the Rules. The construction contended for by the appellant is therefore inconsistent with the express provisions of the code prescribed by s 8 of the IFP Act for an extension of time. The appellant’s construction must be rejected.
Service on a solicitor on the record
Adelta Legal initiated the misappropriation action on 30 June 2014. It followed that all subsequent proceedings in that action could properly be served on Adelta Legal pursuant to SCR 24, which provides:
24—Solicitor's presumptive authority
A solicitor who appears in the Court's records as the solicitor for a party is taken to have authority to represent the party as the party's solicitor and to accept, on behalf of the party, service of documents related to the proceedings unless the contrary is established.
However, SCR 24 applies only to the action in which the notice is filed. It does not extend to any other action which might be initiated against the party for whom the solicitor is on the record.
Limitation of Actions Act 1936 (SA)
The appellant also contends, that the Judge erred in not extending the time within which to bring the claim pursuant to s 48 of the Limitation of Actions Act 1936 (SA) (‘the Limitation of Actions Act’):
48—General power to extend periods of limitation
(1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for—
(a) instituting an action; or
(b) doing any act, or taking any step in an action; or
(c)doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2) A court may exercise the powers conferred by this section in respect of any action that—
(a) the court has jurisdiction to entertain; or
(b)the court would, if the action were not out of time, have jurisdiction to entertain.
…
(3b) In determining whether it is, in all the circumstances of a case, just to grant an extension of time, the court should have regard to—
(a) the period of extension sought and, in particular, whether the passage of time has prejudiced a fair trial; and
(b)the desirability of bringing litigation to an end within a reasonable period and thus promoting a more certain basis for the calculation of insurance premiums; and
(c)the nature and extent of the plaintiff's loss and the conduct of the parties generally; and
(d) any other relevant factor.
(4) Where an extension of time is sought pursuant to this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section.
…
(6) This section does not derogate from any other provision under which a court may extend or abridge time prescribed or limited by an Act, regulation, rule or by-law.
That contention must be rejected. 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.
Moreover, the initiating document in the TFM action was not endorsed pursuant to s 48(4) of the Limitation of Actions Act. No argument was put to the Judge that an extension should be granted. The exercise of the discretion conferred by s 48 of the Limitation of Actions Act might have been affected by evidence which the respondent has not had an opportunity to call. Even if s 48 of the Limitation of Actions Act (SA) applied to s 8(1) of the IFP Act the appellant should not now be permitted to rely on it.
Other matters
Cheryl and Robert were given permission to file amended defences and replies on 9 September 2016. It was at that point that detriment caused by their delay in raising the time point might properly have been raised. Cheryl and Robert may have been refused permission if the detriment could not be remedied by a costs order. It is difficult to see how the delay, and associated circumstances of this case, could have justified a refusal to allow them the substantive statutory protection conferred by s 8(5) of the IFP Act.[2] Be that as it may, there is no appeal from that order, nor did Colin plead that Cheryl and Robert were estopped from relying on the same point.
[2] The Commonwealth v Verwayen (1990) 170 CLR 394 at 446-448 per Deane J, at 466-467 per Toohey J, at 485-486 per Gaudron J, at 457-460 per Dawson J, cf: at 416-417 per Mason CJ.
Adelta Legal’s Authority – Notice of Alternative Contention
Cheryl and Ms Yule gave evidence before the Judge. The Judge found that Ms Yule and Cheryl did not expressly discuss the question of acceptance of service of Colin’s testator family member proceedings. The Judge held that there was no representation on which ostensible authority could be founded. Those findings are not challenged by the appellant. The Judge did find that Adelta Legal had a general authority to accept service of the TFM action. In so finding the Judge relied on the following factual circumstances:
·On 15 May 2013 Lynch Meyer (for whom Ms Yule had previously worked for) wrote to Cheryl setting out the terms of engagement in which the subject matter of their retainer was described as:
The Work
You have asked us to act for you in applying for probate and assisting in the administration of your mother’s estate. We note that it is likely there may be a dispute in the matter involving your brother Colin. If this occurs, we will advise you separately regarding those costs.[3]
[3] Miller v Miller [2017] SASC 37 at [14].
·On 3 December 2014, in a telephone conversation between Ms Yule and Cheryl about Colins’s intention to make a claim under the IFP Act, Cheryl instructed Ms Yule to act as solicitor for the estate and not to provide the information requested by Colin at that stage.[4]
·On 8 May 2015 Ms Yule informed Cheryl that Colin’s solicitors suspected that the misappropriation action was initiated in anticipation of testator family maintenance claim which at that point Colin had foreshadowed he would make.[5]
·On 30 June 2015 Adelta Legal wrote to Cheryl with a revised retainer agreement which included the following passage:[6]
[4] Miller v Miller [2017] SASC 37 at [22].
[5] Miller v Miller [2017] SASC 37 at [35].
[6] Miller v Miller [2017] SASC 37 at [39].
1 Scope of the Legal Work
1.1 You have instructed us to assist in the administration of the estates of Elsie and John Miller and in particular with respect to the litigation involving Colin Miller.
1.2 We will accept instructions from you and any person that you confirm represents you and may give us instructions on your behalf.
·On 20 August 2015, when Ms Yule telephoned Cheryl and asked her for the correct addresses of her children so that Colin’s solicitors could effect service of the requisite notices in connection with his TFM claim, Cheryl told Ms Yule to accept service for them.[7]
[7] Miller v Miller [2017] SASC 37 at [43].
The Judge’s reasons for finding that Adelta Legal had general instructions to accept service were:[8]
[86]The reference to ‘the litigation involving Colin Miller’ should be construed as a reference to the 2014 action and the foreshadowed Inheritance Act action. First, Cheryl had already instructed Adelta Legal to act for her in relation to the foreshadowed Inheritance Act action on 3 December 2014 and Adelta Legal had been doing so since that time. Secondly, there was a clear interrelationship between the two actions. The Inheritance Act application could have been brought as a counterclaim in the 2014 action pursuant to rule 35 of the Rules (joining Robert as an additional defendant to the cross action) and arguably could have been the subject of a defence of set-off in the 2014 action. Conversely, the misappropriation claim the subject of the 2014 action could have been brought as a counterclaim in the foreshadowed Inheritance Act action. In addition, the conduct the subject of the misappropriation claim could have been raised by way of defence as disentitling conduct under subsection 7(3) of the Inheritance Act.
[87]Adelta Legal had general authority to take steps in relation to the Inheritance Act application. As a matter of construction, in the particular circumstances of this case, that general authority included accepting service of the summons on behalf of Cheryl as executor. Adelta Legal had authority to accept service of documents generally in the 2014 action such that, if Colin had chosen to bring the Inheritance Act application by way of counterclaim in the 2014 action, Adelta Legal had authority to accept service of it. It makes no material difference to the scope of Adelta Legal’s authority whether Colin chose to bring the application in the form of a new action as opposed to a counterclaim in the existing action. It may be accepted that normally the mere fact that a solicitor is instructed to act for a client in relation to a dispute before the institution of proceedings does not entail that the solicitor is instructed to act for that client if proceedings are instituted or that the solicitor has instructions to accept service of the proceedings. However, in the present case it is clear that Adelta Legal was instructed to act for Cheryl as the executor party to the Inheritance Act application and, on their proper construction, those instructions extended to accepting service of the application.
[8] Miller v Miller [2017] SASC 37 at [86]-[87].
The respondent attacks those findings on a strict and literal construction of the letters of retainer. However, 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. Moreover, the Judge found the instructions to accept service for potential claimants on 20 August 2015 was in itself a sufficient basis to imply authority.[9]
[9] Miller v Miller [2017] SASC 37 at [88].
The respondent’s submission that there must be a special retainer to institute proceedings may be accepted. However, the instructions given by Cheryl to Ms Yule in contemplation of Colin’s claim serve that purpose.
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.
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].
On 4 December 2014, Ms Yule sent an email to Armstrong Legal acknowledging receipt of Ms Rizkallah’s letter and confirming that she acted for Cheryl as executor of John’s estate. Ms Yule said:
As the late Mr Miller died only on Monday this week, we are not yet in a position to provide you with the information that you seek.
Cheryl is granted probate of John’s will and alleges Colin misappropriated John’s assets
Probate of John’s will was granted to Cheryl on 24 February 2015. The reported assets of the estate totalled approximately $665,930.00, comprising roughly $541,399.00 in bank accounts, $37,031.00 in shares and house property at Kimba valued at $87,500.00.
Following the grant of probate, Ms Yule liaised with the Public Trustee for the funds held by the Public Trustee on behalf of Elsie and John’s estates to be transferred to Adelta’s trust account.
On 22 March 2015, Ms Rizkallah, having resigned from Armstrong Legal, commenced employment with Marshalls + Dent Lawyers. Colin then instructed Marshalls + Dent to accept service of the summons and to file a notice of address for service in the misappropriation proceedings.
In her capacity as executor of John’s estate, Cheryl was joined as co‑plaintiff in the misappropriation proceedings and on 21 April 2015 filed a second statement of claim in those proceedings alleging that Colin had also fraudulently dealt with John’s assets.
Cheryl distributes assets of the estate to herself and Robert
In April 2015, Cheryl transferred shares in John’s estate to herself and Robert and distributed $277,500.00 each to herself and Robert.
The communications between Cheryl solicitors and Colin’s solicitors
On 8 May 2015, Marshalls + Dent wrote to Adelta regarding the pleadings in the misappropriation proceedings, referred to the timing of the institution of those proceedings and stated that “we suspect this proceeding is being brought for a collateral purpose which relates to the foreshadowed family provision claim against the estate of John Miller”. The Judge referred to Ms Yule informing Cheryl of this suspicion.
On 23 June 2015, Marshalls + Dent wrote to Adelta stating that they were in the process of instituting proceedings and that Colin as plaintiff was required to file and serve an affidavit pursuant to r 314(2) of the Rules setting out any potential claimant on the estate. The solicitors sought the names and addresses of Cheryl’s children as potential claimants.
On 24 June 2015, Ms Yule contacted Cheryl to inform her that Colin was issuing an application pursuant to the Act. During the trial Cheryl confirmed that she made an entry in her diary about her feelings regarding this conversation with Ms Yule. Exhibit P18 is an extract from Cheryl’s diary dated 24 June 2015 wherein she has recorded:
Same. Fuckhead issuing proceedings to claim his inheritance from the estate. I pray God’s will be done.
Adelta wrote to Cheryl on 30 June 2015 advising that, due to changes to the Legal Practitioners Act 1981 (SA), it was necessary for Ms Yule to revise her retainer agreement with Cheryl. Attached to this letter was a retainer agreement dated 30 June 2015 which included the following:
1 Scope of the Legal Work
1.1 You have instructed us to assist in the administration of the estates of Elsie and John Miller and in particular with respect to the litigation involving Colin Miller.
The Judge found that the reference to “the litigation involving Colin Miller” should be construed as a reference to the misappropriation proceedings and the “foreshadowed Inheritance Act action”.[12] Accordingly, the Judge determined that it was clear that Adelta was instructed to act for Cheryl as the executor party to Colin’s application and, on their proper construction, those instructions extended to accepting service of the application.[13]
[12] Miller v Miller [2017] SASC 37 at [86].
[13] Miller v Miller [2017] SASC 37 at [87].
On 20 August 2015, Ms Rizkallah swore an affidavit in support of Colin’s application deposing that the affidavits Colin was required to file pursuant to the Rules, would be filed as soon as practicable (“Ms Rizkallah’s affidavit”).
Cheryl gives instructions that address for service of potential claimants is care of Adelta
On 20 August 2015, Arkin Kaman of Marshalls + Dent telephoned Ms Yule requesting a copy of the statement of assets and liabilities pertaining to John’s estate and asking again for details of the potential claimants. Ms Yule then spoke with Cheryl who, significantly, gave her instructions to tell Marshalls + Dent that the address for service of the potential claimants was care of Adelta.
On 21 August 2015, Ms Yule sent an email to Mr Kaman attaching a copy of the statement of assets and liabilities and advised that the address for each of the potential claimants was care of Adelta.
The Judge found that if, contrary to his conclusion that Adelta was instructed to act for Cheryl as the executor party to Colin’s application and to accept service of the application, it was not within the scope of Adelta’s authority before 20 August 2015 to accept service of Colin’s application, it was implied from Cheryl’s instructions concerning service of notices upon her children that Adelta had authority to accept service of the application on her behalf as executor.[14]
[14] Miller v Miller [2017] SASC 37 at [88].
Colin’s application was instituted on 21 August 2015 by O’Loughlins Lawyers as agents for Marshalls + Dent upon the filing of the summons, statement of claim and Ms Rizkallah’s affidavit.
Colin’s application together with a letter addressed to Adelta marked to Ms Yule’s attention was delivered by Mr Ryder at about 1.00 pm on 24 August 2015 to the receptionist at Adelta. The letter referred to Colin’s application being enclosed by way of service and requested confirmation of acceptance of service.
On 24 August, Colin swore affidavits in support of his application in Melbourne. The affidavits were emailed to Mr Ryder of O’Loughlins who then swore an affidavit exhibiting the emailed affidavits. Mr Ryder returned to Adelta’s office at 4.40 pm on 24 August to serve his affidavit exhibiting Colin’s two affidavits.
The request for confirmation of service of Colin’s application was never answered by Adelta.
Ms Yule was not at work on 24 August and did not receive the documents delivered by Mr Ryder until 25 August 2015.
On 25 August 2015, letters were posted by Marshalls + Dent to Cheryl’s four children care of Adelta enclosing Notices to Potential Claimants of a Claim under the Act pursuant to r 314 of the Rules.
The Judge found that Ms Yule most likely informed Cheryl of Colin’s application on 25 August 2015.[15] Ms Yule told Cheryl that Colin had prepared a very long affidavit and asked whether she wanted it emailed or posted to her. Cheryl told Ms Yule “I don’t want to look at it, don’t give it to me now” as she was in the middle of a pleading dispute in the misappropriation proceedings.
[15] Miller v Miller [2017] SASC 37 at [66].
On 27 August, Mr Ryder emailed Ms Yule attaching by way of service scanned copies of Colin’s affidavits, the originals of which had been filed.
As Ms Yule was on leave between 4 and 14 September 2015, Ms Field of Adelta had charge of Ms Yule’s files.
On 9 September 2015, Cheryl asked Ms Field to email her a copy of Colin’s application. Ms Field duly emailed the documents to Cheryl. Upon receipt of the documents on 11 September 2015 and noticing the warning under “Action required” on the summons regarding the filing of a notice of address for service, Cheryl contacted Ms Field and said, “we are supposed to file a notice of address for service in Colin’s proceedings”. Ms Field said Ms Yule would attend to it the following week and that “it would be unprofessional of [Colin’s lawyers] to take any action given that they know we are acting in the matter”.
On 17 September 2015, Cheryl informed Ms Yule that she had decided to instruct RSA Law to assume conduct of the misappropriation proceedings and Colin’s application from Adelta.
On 23 September 2015, Ms Yule emailed Colin’s solicitors stating that “our instructions have been terminated and Cheryl Miller is now represented by RLS Lawyers – Roger Sallis.”
On 29 September 2015, a notice of address for service was filed in this action by RSA Law on behalf of Cheryl.
Cheryl’s defence to Colin’s application was filed by RSA on 15 October 2015. As previously stated, Cheryl’s defence pleaded to the merits of the application and did not plead that the application was out of time.
The interlocutory proceedings
At the initial directions hearing on 25 November 2015, it was noted by the Master that “This is an IFP claim and the parties wish to hold a settlement conference”. The matter was listed for settlement conference on 18 February 2016.
A notice of acting was filed by RSA for Robert on 16 February 2016.
On 18 February 2016, the settlement conference was closed and orders were made for disclosure of documents limited to documents in respect of the parties’ current financial position and any documents in respect of any inter vivos transaction of property from either of their parents.
On 20 April 2016, Colin filed an application (“FDN 12”) seeking orders that Cheryl account for the assets in the estate and for the refund of any monies distributed. At a directions hearing held on 21 April 2016, the Master made orders for the filing of affidavits and submissions in opposition to FDN 12. FDN 12 was listed for argument on 12 May 2016.
The submissions filed in FDN 20 on 11 May 2016 on behalf of Cheryl comprised four parts headed as follows:
1.The application (FDN 12) is misconceived as a matter of law;
2.The application (FDN 12) is misconceived as a matter of fact;
3.The proceedings were likely served out of time in any event; and
4.Other matters.
Argument regarding FDN 12 proceeded on 12 May 2016 focusing on the question of the value of the estate and details of the Public Trustee’s administration of Elsie’s estate. Mr Ower SC for Cheryl and Robert referred to the parties having made voluminous production and said:[16]
Well, once this application and indeed FDN12 is dealt with, we were going to give some consideration to bringing an application for separate determination of those questions of what is in the estate and what’s out…
[16] Transcript of Proceedings (Supreme Court of South Australia, Judge Dart, 12 May 2016) at p 13.
The Master dismissed FDN 12 and noted that substitute orders were made largely by consent. He ordered that Robert file a defence, that the parties make disclosure, and that Cheryl file an affidavit consolidating the current position of the estate within 28 days. The Master recorded that:
The plaintiff seeks further material in respect of the financial position of the defendants. They are prepared to provide that. The first defendant in her capacity as executor gives an undertaking not to distribute any further, pending the resolution of these proceedings. The undertaking is noted on the transcript.
Colin made disclosure on 9 June 2016. Cheryl made disclosure on 9 June 2016 and Robert’s defence was filed on 24 June 2016.
On 30 June 2016, the Master gave all parties liberty to inspect, uplift, and copy documents produced by the Public Trustee. The Master also ordered that the parties proceed to mediation within the next 30 days.
At a directions hearing on 11 August 2016, the Master noted that the matter had gone to mediation but did not resolve. He ordered that any application to amend the defences was to be made within 14 days.
On 25 August 2016, in FDN 29, Cheryl sought permission to amend her defence to plead that the proceedings were served out of time. In FDN 30, an affidavit filed in support of the application, her solicitor deposes that at the time she was instructed to file Cheryl’s defence on 15 October 2015 she had minimal material regarding the action from Adelta, and had not been told anything by Adelta to suggest the application had not been served within six months of probate.
On 9 September 2016, the Master gave permission to Cheryl and Robert to file amended defences and noted that other than the filing of amended defences and replies, the parties were ready for trial. Colin’s application was listed for trial on 1 November 2016.
Amended defences were filed pleading the time issue on 9 September 2016 and replies filed on 20 October 2016. Robert made discovery and Cheryl made supplementary discovery. Subpoenas to produce documents and give evidence at trial were issued at the request of both parties.
Cheryl and Robert made application FDN 40 seeking orders to set aside a subpoena directed to Ms Yule, that directions be made regarding the taking of evidence from Robert and that Colin be compelled to make supplementary disclosure. The application was heard by the Judge on 24 October 2016. Colin was given permission to file and serve an amended statement of claim pleading a request for an extension of time. The Judge made a raft of other orders preparatory to the trial regarding a tender book, affidavits, oral evidence and an extension of time to the defendants to sign the certificate of readiness.
On 28 October 2016, Cheryl and Robert filed an urgent application, FDN 53, seeking that the trial listed for 1 November 2016 be vacated. On 31 October 2016, the Judge ordered by consent:
Pursuant to r 211 of the Supreme Court Civil Rules 2006, the following separate issue be heard and determined before other issues in the action:
“Preliminary issue:
Was the application under the Inheritance (Family Provision) Act 1972 served on the first defendant within six months of the date of the grant of probate of the estate of John William Miller who passed on 1 December 2014?”
Colin’s amended statement of claim was filed on 1 November 2016.
The Act and the Rules
The purpose of the Act is to assure to the family of a deceased person adequate provision out of the estate.
Section 7(1) provides that the Court may, “upon application …, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.
Section 7(2) provides that notice of an application under the Act is to “be served by the applicant on the administrator of the estate of the deceased person, and on such other persons as the Court may direct”.
Rule 314(2) of the Rules provides for the procedure for commencing an application under the Act and requires the applicant to file an affidavit stating:
(a)the names and current addresses of all other persons who may be entitled to make a claim for provision (or further provision) out of the estate of the deceased under the Act (the potential claimants); and
(b)the names and current addresses of all beneficiaries of the estate.
Section 8(1) of the Act mandates that an application under the Act must be made within six months of the grant of probate. Section 8(6) of the Act prescribes that an “application for the benefit of this Act shall be deemed to be made on the day when the summons by which it is instituted is served on the administrator of the estate”.[17] Accordingly, the last day for service of Colin’s application on Cheryl as executor of John’s estate was 24 August 2015.
[17] Emphasis added.
If Colin’s application was made within time, the Court may (if appropriate) make an order for provision out of any part of John’s estate, whether the estate has been distributed or not. If the application was not made within time, Colin requires an extension of time. Section 8(2) of the Act gives the Court the discretion to extend the time for making an application and s 8(5) mandates that “any distribution of any part of the estate made before the application for an extension of time shall not be disturbed by reason of the application or any order thereon”.
Rules of Court under the Act
The only rules regulating the practice and procedure of the Court for the purposes of the Act are r 314 to r 317 of the Rules. Those rules do not prescribe the manner of service of an application under the Act nor the requirements for pleading a defence to an application. Section 17(2) of the Act provides that the general practice and procedure of the Court applies to all proceedings of the Court under the Act. Therefore, the Rules regarding pleading and service apply to Colin’s application.
As Colin’s application was a primary originating process, he was required in compliance with r 66 to serve it personally on Cheryl and Robert. Rule 67 is a code which prescribes the circumstances in which a document is served personally:
67—How personal service effected
(1)Personal service of a document is effected if—
(a) the document is given to, and accepted by, the person to be served; or
(b) the person to be served is offered the document and, if he or she appears unwilling to accept it, is informed orally of the nature of the document; or
(c) a solicitor accepts service of the document on behalf of the person to be served (whether the solicitor is served personally with the document or not) and issues an acknowledgment to that effect; or
(d) the document is served in accordance with an agreement between the parties as to the manner of service.
(2)Personal service of a document will be presumed if—
(a) an answering document is filed in the Court or served on the party required to serve the document; or
(b) it is established in some other way that the document and its contents have come to the attention of the person to be served.
Rule 67(1)(c) provides that personal service is effected if a solicitor accepts service of the document on behalf of the person to be served (whether the solicitor is served personally with the document or not) and issues an acknowledgement to that effect.
Rule 67(2)(a) provides that personal service will be presumed if an answering document is filed.
Rule 92 of the Rules provides that a defendant who proposes to resist a claim must file a defence within 28 days. Rule 92(3) provides that the filing of a defence does not prevent the defendant from challenging the jurisdiction of the Court or raising any question about the validity or irregularity of the proceedings.
Rule 100 requires that a defence must raise any preliminary issue and must raise specifically any defence on which a defendant relies. Subrule (2) provides that a preliminary issue includes a challenge the jurisdiction of the Court. Subrule (3) provides that a special defence is a defence other than a denial of facts and matters alleged by a plaintiff or a denial that facts and matters alleged by the plaintiff give rise to a cause of action. Examples given are:
1.An assertion that a plaintiff is estopped from maintaining the claim.
2.An assertion that a plaintiff’s claim is statute barred.
The strict time limit for service of an application under the Act, the requirement that an application for extension of time for making an application is to be made before final distribution and the draconian effect of s 8(5) evidence a legislative intent for claims against a deceased estate to be brought to the attention of an executor promptly following a grant of probate. By contrast, r 39 requires that other originating process is to be served within six months after it has been filed and an extension of time to serve may be permitted of up to 12 months even though the time for service has expired and/or the time for commencing an action against a defendant has expired.
The arguments on appeal
Colin makes three key arguments with respect to his contention that Cheryl was served within the limitation period prescribed by the Act. Firstly, he contends that Adelta had authority to accept service. Secondly, that service was acknowledged either by the authority to accept service found to exist by the Judge or by the filing of the notice of acting and the defence. Thirdly, he says if service was not effective that there should have been a finding that Cheryl was precluded from disputing personal service, either because this was waived as in Ditfort v Temby[18] or because there was an estoppel by convention, the convention being that good service had been effected on 24 August 2015 and it would now be unjust to allow Cheryl to depart from that state of affairs. Finally, if necessary, Colin seeks an extension of time pursuant to s 48(1)(a) of the Limitation of Actions Act 1936 (SA).
[18] (1990) 26 FCR 72.
Did Adelta have authority to accept service of Colin’s application?
Colin submits that personal service of his application on Cheryl as defined by r 67 was not required because Adelta had authority to accept service of his application. Adelta, specifically Ms Yule, had acted for Cheryl as executor of John’s estate and in the misappropriation proceedings since June 2014. Prior to June 2014, on 15 May 2013, Cheryl had instructed Ms Yule, who was then at Lynch Meyer, in relation to obtaining a grant of probate in respect of Elsie’s estate. By the date of the disputed service, 24 August 2015, Ms Yule had represented Cheryl for over two years, during which time she had served and accepted service of numerous documents in her capacity as Cheryl’s solicitor.
The Judge found that on 24 June 2015, in response to Ms Yule informing her that Colin was issuing proceedings to claim inheritance from John’s estate, Cheryl confirmed that Adelta were to act for her as executor of John’s estate in relation to those proceedings.[19] On 30 June 2015, Adelta entered into a revised retainer agreement with Cheryl which specified that she had instructed Adelta to “assist in the administration of the estates of Elsie Miller and John Miller and, in particular, with respect to the litigation involving Colin Miller”.
[19] Miller v Miller [2017] SASC 37 at [83].
Colin submits that his application under the Act was closely connected to the claim brought by Cheryl in the misappropriation proceedings, noting that Cheryl’s defence to his application closely mirrors the allegations made against him in the misappropriation proceedings. Further, prior to discontinuing the misappropriation proceedings, Cheryl had sought to have those proceedings heard with Colin’s application. In the context of this ongoing broader dispute between the parties, Adelta is said to have already held from Cheryl a general authority which extended to accepting service of Colin’s application. It is submitted that this was accepted by the Judge at [86] to [87]. The Judge found that Adelta had general authority to take steps in relation to Colin’s application and that as a matter of construction, in the particular circumstances of this case, that general authority included accepting service of the summons on behalf of Cheryl as executor.
The Judge noted that on 20 August 2015, Colin’s solicitor asked Ms Yule for details of the potential claimants so that he could prepare his affidavit pursuant to r 314, which required service of the notice on the potential claimants within 14 days of his application under the Act. Cheryl instructed Ms Yule to tell Colin’s solicitors that the children’s addresses for service were “care of Adelta Legal”. His Honour then went on to say that if, contrary to his conclusion that Adelta had authority to accept service, it was not within the scope of their authority before 20 August 2015 to accept service of Colin’s application, it was implied from Cheryl’s instructions concerning service of the notices on her children that Adelta had authority to accept service of the application on her as executor. Colin submits that in the context of the broader extant litigation history between the parties, the Judge correctly found that Adelta had a general authority to act for Cheryl in estate matters involving Colin and this extended to accepting service of his application under the Act.
Did Adelta have presumptive authority pursuant to r 24?
Colin relies on r 24 which provides that once a solicitor is on the record, there is a presumption that the solicitor is authorised to receive all documentation in respect of the proceedings. Rule 24 provides:
A solicitor who appears in the Court’s records as the solicitor for a party is taken to have authority to represent the party as the party’s solicitor and to accept, on behalf of the party, service of documents related to the proceedings unless the contrary is established.
Rule 24 must be read in its context in Part 5, Division 2 of the Rules. In particular, r 23(1) provides that a solicitor is to be recorded in the Court’s records as the solicitor acting for a party if:
(a)the solicitor’s name appears on the first document to be filed in the Court on behalf of the party as the name of the party’s solicitor; or
(b)the solicitor gives notice to the Court, in an approved form, that the solicitor is acting for the party.
Rule 23(1)(a) is to be construed as referring to the first document filed in the Court in “the proceedings” referred to in r 24. The presumptive authority is not to be construed as applying to “all proceedings commenced on behalf of or against a person”. The presumptive authority relates only to “the proceedings” in which the document on which the solicitor’s name first appears or the notice giving notice that the solicitor is acting for the party is filed. If the presumptive authority were to extend to all actions commenced on behalf of or against a person, it would mean that if proceedings were later commenced by other solicitors those new solicitors would have to file a document to the effect that they are to be recorded as the solicitor acting for the party in place of the previous solicitor recorded as the solicitor acting for the party.
Accordingly, the presumptive authority in r 24 does not assist Colin. The presumptive authority prescribed by this rule only extended to Adelta’s presumed authority in the misappropriation proceedings up until the notice of change of solicitor was filed by RSA Law on 29 September 2015.
Was service effected on Adelta as Cheryl’s agent?
Colin also relies on r 65 which provides that:
65—Agent
(1)A document to be served on a person may, if the Court permits, be served on an agent of that person.
(2)A document served on an agent under this rule is taken to have been served on the principal.
However, to rely on this rule, Colin would have had to obtain the permission of the Court to serve Adelta as Cheryl’s agent before he served his application.
The Court’s discretion to permit service on an agent pursuant to r 65 can only be exercised prospectively in respect of a document “to be served”.
Was acknowledgment of service by Adelta necessary for the service to be effective?
Colin argues that no positive acknowledgment by Adelta was required for personal service to be effective pursuant to r 67(1)(c). Whilst the Judge found that Adelta had authority to accept service of his application, the Judge found that Adelta did not issue an acknowledgment of service as required by the subrule, verbally or in writing. The Judge said that the mere fact that Adelta had instructions to accept service was not sufficient to satisfy the rule’s requirements. While the Judge considered that the rule required an acknowledgment in writing, even if the acknowledgment could be verbal, the Judge found it must convey an acknowledgment by the solicitor that the solicitor has accepted service on behalf of Cheryl, and no such acknowledgment was issued.[20] The Judge went on to state that there is a clear legislative purpose for the requirement that an acknowledgment be issued:[21]
If the solicitor has instructions to accept service on behalf of the person to be served, there would be no need to include the requirement for issue of an acknowledgement of acceptance of service. The fact that that requirement is included suggests that it was considered that certainty as to the effectiveness of service is necessary. The fact that rule 65 addresses service on an agent and requires prior Court permission reinforces that rule 67 is a code identifying exclusively the circumstances in which a document is served personally.
[20] Miller v Miller [2017] SASC 37 at [94].
[21] Miller v Miller [2017] SASC 37 at [95].
Colin contends that because Adelta was found to have authority to accept service, the delivery of documents on it constituted good service on Cheryl regardless of whether or not Ms Yule or Adelta were cognisant of the receipt of the document. It was not necessary for Ms Yule or Adelta to acknowledge service of Colin’s application in order for the service to be effective. He asserts that the purpose of the acknowledgment of service is for the record and not necessarily to perfect service. He says that Cheryl was a person with an address for service who had been served at that address.
There can be no doubt having regard to the findings of the Judge to the effect that Adelta had instructions to accept service of Colin’s application on Cheryl’s behalf as executor at least from 20 August 2015 when Cheryl gave instructions that the address for the potential claimants was “care of Adelta Legal”.
However, the acknowledgment for perfected service as required by r 67(1)(c) was never issued.
Colin argues that r 117, which provides the Court with power to make orders controlling the conduct of litigation, can be called in aid to dispense with the requirement that the acknowledgment be issued. Rule 117 provides that the Court “may make any order it considers necessary for the proper conduct of a proceeding or otherwise in the interests of justice” and may, utilising r 117(2)(a), “dispense with compliance with a rule”.
The former rule governing personal service, r 12.03 of the Supreme Court Rules 1987 (SA) (“the 1987 Rules”), provided that a document was deemed to have been personally served where “the solicitor of the party served endorses a statement on the document that he accepts service of it”. Rule 67(1)(c) is distinguishable from r 12.03 because it comprises two limbs. The first limb requires the solicitor to accept service and the second limb requires the issuing of the acknowledgment. Rule 67(1)(c) is similar to r 10.22 of the Federal Court Rules 2011 (Cth) which requires that two limbs be satisfied for a lawyer to accept service as follows:
10.22 Acceptance of service by lawyer
(1)A lawyer may accept service of an originating application for a respondent if:
(a) the lawyer has authority to accept service of an originating application for the respondent; and
(b) the lawyer endorses a note on a copy of the document that the lawyer accepts service of the document for the respondent.
(2)A document that is endorsed by a lawyer under paragraph (1)(b) is taken to have been served personally:
(a) on the date that the endorsement is made; or
(b) if personal service on the respondent is proved on an earlier date—on the earlier date.
Rule 12.03 of the 1987 Rules had one requirement for service to be effective; the endorsement on the document served on the solicitor.
The Judge found that Adelta had instructions to accept service of Colin’s application on behalf of Cheryl as executor defendant to the application. The service of Colin’s application on Adelta on 24 August 2015 cannot be viewed in isolation. It must be viewed in the context of Adelta acting for Cheryl in relation “to the litigation involving Colin Miller”[22] as well as the communications between Colin’s solicitors and Adelta regarding Colin’s foreshadowed application and the fact that Adelta had instructions to accept service of Colin’s application on behalf of Cheryl as executor defendant. Against this background, Adelta’s correspondence with Colin’s solicitors stating that Cheryl had instructed them that the r 314 notices were to be served on her children care of Adelta was also validation that Cheryl was to be served care of Adelta.
[22] The judge found the reference to the litigation involving Colin Miller in Adelta’s retainer with Cheryl should be construed as a reference to both the misappropriation proceedings and the foreshadowed application under the Act.
At no stage did Adelta or Ms Yule convey that they did not have instructions to accept service following the purported service on 24 August 2015 or following service of Colin’s affidavits on 27 August 2015 or when they informed Colin’s solicitors that their instructions had been terminated. Nor is there any evidence that Adelta or Ms Yule sought those instructions or Cheryl gave such instructions.
It follows, in my view, in the circumstances of this matter, that the first limb of r 67(1)(c) has been satisfied, that is, Adelta accepted service of Colin’s application. The physical act of service on Adelta, which had instructions to accept service of Colin’s application on behalf of Cheryl as executor, occurred on the last day for service on 24 August 2015. All that remains to complete effective service pursuant to the Rules is the issuing of the acknowledgment.
In these particular circumstances, I am satisfied it is in the interests of justice that the Court exercise its discretion pursuant to r 117 to dispense with the requirement that effective service of Colin’s application requires Adelta to issue an acknowledgment in accordance with r 67(1)(c). In doing so, the Court is not extending the time for service. It is dispensing with the requirement for an acknowledgment of service to be issued by the solicitors who have been served with Colin’s application within time.
Were the notice of acting and defence sufficient for the purposes of an acknowledgment?
Colin submits that the filing of the address for service by Cheryl’s solicitor does the work of an acknowledgment of service for the purposes of r 67(1)(c). He contends that service should be presumed because Cheryl’s solicitors filed a notice of acting and a defence. He also relies on r 67(2) which provides that there is a presumption of personal service if “an answering document is filed in the Court or served on the party required to serve the document”.
The Judge found that even if the filing of the notice of address for service did constitute an acknowledgment of service, the acknowledgment could only run from the date of the filing of the notice of address for service on 29 September 2015 at which time the six month limitation period had already expired.[23]
[23] Miller v Miller [2017] SASC 37 at [95].
Colin argues that if Cheryl was required to acknowledge service within time or if r 67(2)(a) made the filing of answering documents within time necessary, then satisfaction of those matters would depend entirely on the cooperation of the opponent, which cannot be correct. A person in receipt of the documents could delay giving an acknowledgment or simply refuse to give an acknowledgment.
Accordingly, Colin argues that the acknowledgment or dispensation of the need for an acknowledgment should operate from the time of service of the proceedings rather than the time the acknowledgment was issued or a dispensation ordered.
Colin argues that if there was a problem with service, Cheryl and Robert had the right to raise this as a preliminary issue in their defence, which they did not do. As a result they should, in Colin’s submission, be deemed to have waived their right to argue any point about irregularity of service. Cheryl’s defence was filed by RSA Law on 15 October 2015. That defence did not plead that the application had been served out of time or that there were other irregularities in service. The issue was not raised until the hearing before the Master on 12 May 2016, when counsel for Cheryl stated in oral submissions that consideration was going to be given, following determination of FDN 12, to bringing an application for separate determination of the issue of service of the proceedings. However, it was not until 25 August 2016 that the application was filed by Cheryl and Robert seeking to amend the defences to include the pleading that the application had not been served within time. Finally, on 9 September 2016, amended defences were filed.
Colin contends that, like the making of an unconditional appearance permitted under former Supreme Court rules, the filing of a notice of address for service with a defence that does not raise any point about irregular service ultimately amounts to a waiver of the right to argue any point about service.
Further, Colin submits that waiver is particularly appropriate in the circumstances of this case where:
·there were already proceedings effectively on the same subject matter on foot between the parties;
·Cheryl had been alerted to the potential inheritance claim;
·there was a request for acknowledgment of service that was never answered; and
·no point about service was taken for over a year, throughout which time the parties’ relationships continued on the basis that there had been effective service.
Accordingly, on a proper approach to r 67(2), Colin submits the filing of answering documents cures any irregularity regarding the time of service because the only date for service was the date of the delivery of the documents within time on 24 August 2015. There was no other time at which service could be presumed.
Colin says that Cheryl and Robert cannot now be permitted to say that good service was not effected after having spent a year acting on the basis that service had been effected. This objective inconsistency in the position taken, in Colin’s submission, must renounce or waive Cheryl and Robert’s right to argue that his application was served out of time.
The filing of answering documents
There is no definition of “answering document” in the Rules. The Rules refer to “answering material” and “answering affidavits”. Forms 4, 8, 9 and 9A in Schedule 3 to the Supreme Court Civil Supplementary Rules 2014 (SA) contain references to “a defence/answering affidavit (delete whichever is inapplicable)”. Accordingly, it is my view that the reference to “answering document” in r 67(2) is to be construed as either a defence or an answering affidavit. An application supported by an affidavit seeking to dismiss, strike out, or stay the proceedings would also be an answering document.
A notice for address for service is not an answering document as it does not respond to or answer an originating process. Pursuant to r 58 it is, “an address recorded (or to be recorded) in the Court’s records as an address at which documents may be served on the party”.
Prior to the 1987 Rules, the Supreme Court Civil Rules 1947 (SA) provided for the filing of a conditional appearance. An unconditional appearance was considered to be a submission to the Court’s jurisdiction. Where a defendant wished to contest the jurisdiction of the Court or did not wish to waive an irregularity in the proceedings, a conditional appearance was filed. By doing so, the defendant preserved his or her rights and at the same time prevented the plaintiff from signing judgment in default of appearance.[24] It was also former practice for a defendant to file a conditional appearance at the same time as applying to set aside the originating process for alleged irregularity.[25] Arguably an appearance under these superseded rules was an answering document because a defendant could contest jurisdiction by filing a conditional appearance and submit to the jurisdiction by filing an unconditional appearance. The coming into operation of r 21.06 under the 1987 Rules provided that the filing of an unconditional appearance was not a submission to the jurisdiction.
[24] Bernard Cairns, Australian Civil Procedure (Lawbook Co., 5th ed, 2002) 139.
[25] Civil Procedure South Australia, commentary to the Supreme Court Civil Rules 1987 (SA).
Under the Rules, a defence is an answering document. Rule 92 provides that a “defendant who proposes to resist the plaintiff’s claim must file in the Court the defendant’s defence to the plaintiff’s claim”. Rule 92(3) provides that the filing of the defence does not prevent the defendant from challenging the jurisdiction of the Court or raising any question about validity or regularity of the proceedings. However, r 100 requires a defendant must plead any preliminary issue, for example, a challenge to the Court’s jurisdiction and must specifically raise any special defence on which he relies, for example, an assertion that the claim is statute barred. I construe r 92(3) as providing that the act of filing a defence does not prevent a challenge to the jurisdiction because, pursuant to r 100, the challenge to the jurisdiction or reliance on any special defence must be contained within the defence.
In my view, Cheryl’s defence filed on 15 October 2015 was the first answering document for the purposes of r 67(2). It answered and put in issue the matters pleaded in Colin’s application. As it did not plead any preliminary issue or raise any special defence regarding service of the application out of time, it gave rise to a presumption of personal service under r 67(2)(a), that presumption operating with effect on 24 August 2015, being the day Colin’s application was handed to Adelta.
It should be borne in mind that at no stage did Adelta say that they did not have instructions to accept service and, in fact, it can inferred from Cheryl telling Ms Yule in September 2015 that she was terminating Adelta’s instructions and instructing RSA Law that Adelta did, indeed, have instructions to accept service of Colin’s application.
Limitation of Actions Act
Colin also argues that, if necessary, in the alternative the Court should permit an extension of time for the service of his application of one day, at which point service was acknowledged, pursuant to s 48(1)(a) of the Limitation of Actions Act to avoid the injustice that would otherwise arise. He argues that Cheryl was forewarned prior to the expiration of the six month limitation period that a claim would be brought under the Act and, in light of the absence of any conceivable prejudice of permitting an extension of time for service, Colin contends that s 48 should permit an extension of time in the circumstances. The summons initiating Colin’s application was not endorsed in accordance with the requirements of s 48 of the Limitation of Actions Act and the question of an extension of time was not argued before the Judge. Section 8 of the Act, specifically subsections (2) and (3), provides for the making of applications for and granting of extensions of time. In my view, Colin cannot call in aid the Limitation of Actions Act in circumstances where the Act specifically provides for application to be made pursuant to it for an extension of time for the making of an application.
Estoppel by convention
Should his other arguments fail, Colin relies on estoppel by convention which does not require proof of any detriment suffered. Colin relies on the decision in W & R Pty Ltd v Birdseye[26] which concerned the question of whether a land contract had been terminated. The Full Court found that although there was an active termination, because both parties continued to act on the basis that there was a subsisting land contract after the terminating act, the contract continued because of the estoppel by convention. Colin submits that due to the conduct of the parties, with both parties acting for over a year on the basis that service had been effective, it would be unjust to permit Cheryl and Robert to depart from that conventional basis on which they dealt with Colin.
[26] (2008) 102 SASR 477.
Cheryl and Robert argue there was no pleading or argument by Colin before the Judge of estoppel by convention. They argue that there was also no evidence put before the Judge of any assumption by Colin or his solicitors based upon an act or any failure to act by them.
Estoppel by convention may arise where parties to, for example, a contract or negotiation adopt an assumption or a particular state of affairs as basis of their relationship. There is no convention or mutual relationship between the parties in this matter to found a conventional estoppel. If, for example, the parties had agreed service could be effected by a manner outside the Rules (and the Rules did not prohibit consensual service outside the Rules) and Cheryl and Robert later attempted to argue they were not properly served, estoppel by convention may arise.[27] The conduct Colin asserts gives rise to estoppel by convention arises as a result of the litigation he has commenced and Cheryl and Robert are defending. There is no convention, agreement, negotiations or contract between the parties and as such, in my view, estoppel by convention does not arise.
[27] Kenneth Allison Ltd v A E Limehouse & Co [1992] 2 AC 105.
Cheryl and Robert’s conduct in this matter up until the filing of the amended defences was “not consistent with or relevant to their challenge to the”[28] Court’s power to hear Colin’s application. For just over one year they participated in the litigation vigorously defending Colin’s application, conduct which objectively could only be viewed as an intention to defend the matter to trial and therefore a submission to the Court’s jurisdiction to hear the matter.
[28] Brealey v Board of Management of Royal Perth Hospital (1999) 21 WAR 79 at [38].
What constitutes submission to the jurisdiction?
In Brealey v Board of Management of Royal Perth Hospital (“Brealey”),[29] the issue of submission to the jurisdiction was raised as one of a number of grounds of appeal. The appellant, who was claiming damages for personal injury arising out of medical advice and treatment, sought to serve a writ of summons on a hospital and surgeon 1 week after the 12 month period of validity prescribed by the Rules of the Supreme Court 1971 (WA) had expired and, in the alternative, attempted to obtain orders extending the validity of the writ. The application was refused by the Western Australian District Court. On appeal, the appellant argued that the District Court had failed to find that the conduct of an article clerk, who had attended at a chambers hearing for the respondent hospital, constituted a submission to the jurisdiction or a waiver of the irregularity constituted by the service of the stale writ. The Full Court found that, when viewed objectively, the clerk’s conduct did not amount to a submission to the jurisdiction of the District Court. Ipp J, with whom Malcolm CJ agreed, said:[30]
In determining whether steps taken by a party in the course of proceedings amount to a submission to jurisdiction, the question to be considered is whether the steps were necessary or useful to any action taken by the party other than in objecting to the jurisdiction. A step that is not consistent with or relevant to the challenge to the jurisdiction, will usually be a submission to that jurisdiction. The court must consider the matter objectively and, where the steps relied on are the actions of a solicitor, they must be considered in the context of all the relevant circumstances: see Akai Pty Ltd v People’s Insurance Co Ltd [1998] 1 Lloyd’s Rep 90 at 97; Rein v Stein (1892) 66 LT 469 at 471; Williams & Glyn’s Bank Plc v Astro Dinamico Compania Naviera SA [1984] 1 Lloyd’s Rep 453; [1984] 1 WLR 438; Adams v Cape Industries Plc [1990] Ch 433 at 459.
[29] (1999) 21 WAR 79.
[30] (1999) 21 WAR 79 at [38].
The principle that a defendant may lose their right to challenge jurisdiction if they voluntarily submit to the jurisdiction was also considered in Astro Exito Navegacion SA v Hsu[31] (“The Messiniaki Tolmi”) where the Court held that a person voluntarily submits to the jurisdiction of the Court:[32]
… if he voluntarily recognises, or has voluntarily recognised, that the court has jurisdiction to hear and determine the claim which is the subject matter of the relevant proceedings. In particular, he makes a voluntary submission to the jurisdiction if he takes a step in proceedings which in all the circumstances amounts to a recognition of the court’s jurisdiction in respect of the claim which is the subject matter of those proceedings. The effect of a party’s submission to the jurisdiction is that he is precluded thereafter from objecting to the court exercising its jurisdiction in respect of such claim. Whether any particular matter, for example an application to the court, amounts to a voluntary submission to the jurisdiction must depend on the circumstances of the particular case.
(Emphasis added)
[31] [1984] 1 Lloyds Rep 266.
[32] [1984] 1 Lloyds Rep 266 at 270.
In a recent English Chancery Division decision of Dennis v Tag Group Ltd,[33] the Court considered a number of English authorities on the question of submission to jurisdiction, observing that the Court may infer voluntary submission from the circumstances using an objective test[34] (referred to in Sage v Double A Hydraulics Limited[35] as a “well‑informed” but “disinterested bystander” test). In inferring voluntary submission, the Court may have regard to whether the step or act said to create an effective waiver of the right to contest jurisdiction was unequivocal and cannot be explained except on the assumption that the party in question accepts that the Court has jurisdiction.
[33] [2017] EWHC 919 (Ch) (10 April 2017).
[34] SMAY Investments Ltd v Sachdev [2003] 1 WLR 1973 at 1976.
[35] [1992] The Times Law Reports 165. Lord Justice Farquharson said: “A useful test was whether a disinterested bystander with knowledge of the case would have regarded the acts of the Defendant, or his solicitors, as inconsistent with the making and maintaining of his challenge”.
In City of Swan v McGraw-Hill Companies Inc,[36] the principle applied in Brealey and The Messiniaki Tolmi to determine whether there had been a voluntary submission to the jurisdiction of the Court was applied by Rares J in determining whether service should be set aside. Justice Rares found that by bringing an interlocutory application “on a wider basis than merely seeking the discharge of the order giving leave to serve it outside of Australia”,[37] the respondents had submitted to the jurisdiction.
[36] (2014) 223 FCR 295.
[37] (2014) 223 FCR 295 at [112].
Justice Rares found that the respondents did not confine their arguments to simply contesting the Court’s exercise of jurisdiction, but rather, they argued the merits of the claims made by the appellants, contending that the proceeding should be dismissed because there was no prospect of success. In determining that the respondents submitted to the jurisdiction and waived objection to the irregularity in service, His Honour said:[38]
If a defendant seeks relief from the Court wider than relief setting aside service or associated with such relief, such as relief on the merits of a claim, ordinarily, he, she or it will have waived the objection to jurisdiction: Laurie v Carroll (1958) 98 CLR 310 at 335‑336 per Dixon CJ, Williams and Webb JJ; National Commercial Bank v Wimborne (1979) 11 NSWLR 156 at 176E-F, 177D-E, 182D-F per Holland J; Walker v Newmont Australia Ltd [2010] FC 298 at [27] per Gordon J. In Re Dulles’ Settlement (No 2); Dulles v Vidler [1951] Ch 842 at 847, Evershed MR put the issue pithily as follows:
It is, of course, plain that where a question of jurisdiction arises a man cannot both have his cake and eat it. He cannot fight the issue on the merits, and at the same time preserve the right to say, if the worst comes to the worst, that the court has no jurisdiction to decide against him. And he cannot, consistently with that principle, take any step unequivocally referable to the issue on the merits.
(Emphasis added)
[38] (2014) 223 FCR 295 at [117].
Justice Rares found that the respondents tried to “have their cake and eat it too” by attacking the merits of the originating application and statement of claim at a fundamental level in the course of seeking to have service on it set aside, conduct which amounted to a submission to the jurisdiction.
Similarly, in this matter, Cheryl and Robert pleaded to the merits of Colin’s application, made disclosure, and participated in the interlocutory process progressing the matter to a trial on the merits. On 12 May 2016, they sought an order dismissing FDN 12 focusing on the merits of FDN 12, telling the Master that consideration was being given to “bringing an application for separate determination of those questions of what is in the estate and what’s out”. It took a further three months for the amended defences to be filed pleading that Colin’s application was served out of time.
Bearing in mind that applications made under the Act must be served within six months of probate in order that claims against a deceased estate are promptly brought to an executor’s attention so as not to unduly delay the finalisation of the estate, an executor cannot sit on his or her hands for a year before asserting an application was served outside of the six month limitation period.
As such, on my assessment in the circumstances of this matter, Cheryl and Robert have submitted to the jurisdiction of the Court to hear Colin’s application.
Notice of contention
Cheryl and Robert argue that if the terms of the retainer were relevant, the Judge should have found that they did not extend to Adelta accepting personal service of Colin’s application. Further, they say the retainer was irrelevant to the preliminary issue. It is submitted that the Judge fell into error in finding that the reference “to the litigation involving Colin Miller” in the retainer should be construed as a reference to both the misappropriation proceedings and the foreshadowed application under the Act and that Cheryl had conferred on Adelta general authority broad enough to encompass accepting personal service of those proceedings on her behalf.
It is argued that it does not follow from the Judge’s reasons that Adelta had instructions to accept personal service on Cheryl’s behalf. It is also argued that a special authority is essential to entitle a solicitor to commence an action in their client’s name, or to appear for or represent them as a defendant in an action, or take part on their behalf in the proceedings.
In arriving at his decision that Adelta had general authority, the Judge took into account the conversation between Ms Yule and Cheryl on 3 December 2014, wherein Cheryl instructed Ms Yule to act as solicitor for John’s estate as well as in relation to Colin’s intention to make application under the Act and not to provide the information that Colin had sought following the death of his father. The Judge had regard to the fact that Ms Yule told Cheryl of Colin’s solicitor’s suspicion that the misappropriation proceedings had been initiated as a result of Colin’s foreshadowed application under the Act. His Honour also had regard to the 30 June 2015 retainer and the finding that the phrase “the litigation involving Colin Miller” should be construed as a reference to the 2014 action and the foreshadowed inheritance action. Further, the Judge had regard to the instructions that Cheryl gave Ms Yule to the effect that her children’s address for service as potential claimants under Colin’s application would be “care of Adelta”.
The Judge, having heard evidence from Cheryl and Ms Yule, determined that Adelta had general authority to take steps in relation to Colin’s application. His Honour’s conclusion was further underpinned by the fact that Cheryl instructed Ms Yule to tell Colin’s solicitors that her children’s addresses for service was “care of Adelta Legal”. Accordingly, as discussed above his Honour concluded that if it was not within the scope of Adelta’s authority prior to Ms Yule receiving these instructions from Cheryl, it was implied from those instructions that Adelta also had instructions to accept service of the application on her behalf as executor. This finding, in my view, would amount to the special authority Cheryl and Robert contend is essential to entitle a solicitor to act.
The Judge’s findings regarding the existence of the retainer and its relevance to the preliminary issue are supported by the facts and issues identified by the Judge in his reasons.
I would dismiss the notice of contention.
Conclusion
Finally, on the topic of the Rules, I agree with Colin’s argument that if Adelta was required to acknowledge service within time or if r 67(2)(a) made the filing of answering documents within time necessary, then satisfaction of those matters would depend entirely on the cooperation of the opponent, which cannot be correct. A person in receipt of the documents could delay or overlook giving an acknowledgment or filing an answering document. Such a situation is inconsistent with the need to promptly determine applications under the Act, is contrary to the purpose of the Act which is to assure to the family of a deceased person adequate provision out of the estate, and risks the manipulation of the Act and the Rules to defeat legitimate claims.
I would allow the appeal and set aside the orders made by the Judge at [95] and [97] of his judgment 22 March 2017.
I would, pursuant to r 117(2)(a), dispense with the requirement that Adelta issue an acknowledgment of service.
I would find that the defence filed by Cheryl 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.
Further, I would find that Cheryl and Robert by filing their defences pleading to the merits of Colin’s application, failing to plead service of the application outside the six month limitation period, and their participation in interlocutory steps progressing the matter to trial on the merits, amounted to Cheryl and Robert having accepted that the Court has jurisdiction to hear Colin’s application.
Accordingly I would make a declaration that Colin’s application was served on Cheryl within six months of the grant of probate of John’s will.
I would dismiss the notice of contention.
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