N v Public Trustee (No 2)
[2009] SASC 293
•23 September 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
N v PUBLIC TRUSTEE (No 2)
[2009] SASC 293
Judgment of Judge Burley a Master of the Supreme Court
23 September 2008
PROCEDURE
Declaration made that plaintiff and deceased person were putative spouses - application to set aside declaratory order - whether material non-disclosure by application for declaration - other relationships and marriage not disclosed - duty to make full disclosure - declaration set aside.
Supreme Court Civil Rules 2006 Rule 242, referred to.
Mohtar v Mohtar (1988) 146 LSJS 377, applied.
N v PUBLIC TRUSTEE (No 2)
[2009] SASC 293
JUDGE BURLEY: By application dated 28 May 2009 the defendant has applied for the following order:
1 That pursuant to 6R 242(2) of the Supreme Court Rules this Honourable Court set aside the judgment dated 24 December [sic] 2008 declaring that the plaintiff ………. and the deceased ………. were as at 30 April 2004 putative spouses one of the other and reopen the action.
The hearing of the plaintiff’s application for a declaration that she and the deceased were putative spouses one of the other took place on 10 September 2008 before me. At the conclusion of argument I reserved my decision. On 24 September 2008 I gave judgment in the matter in favour of the plaintiff. I published reasons for my decision ([2008] SASC 326). The reference to 24 December in the order sought is incorrect.
At the conclusion of my reasons I said (at [29]):
Having read the affidavits of the plaintiff, I find that she and the deceased lived together as man and wife for a period in excess of 30 years, ending on the death of the deceased. I find that the evidence contained in the affidavits of [specified deponents] corroborates the plaintiff’s evidence to that effect. There is nothing in the evidence or in Mr Frost’s submissions which suggests that there is any basis for denying of the declaratory release sought.
The plaintiff brought the proceedings so that, if she obtained the appropriate declaration, she could, as the putative spouse of the deceased, make a claim on his estate. The deceased died intestate. If there are no next-of-kin, the plaintiff, as putative spouse, takes the whole estate.
Public Trustee is the administrator of the deceased estate. He has made enquiries and is continuing to do so as to whether or not there were any living relatives of the deceased who might take on an intestacy. In the course of those enquiries, Public Trustee came upon information which, on the application to set aside the declaratory order, he asserted was material to the question of whether or not the declaration should have been granted in the first place. Contrary to the plaintiff’s assertion that this application is an abuse of process, I consider that the defendant, as administrator of the deceased’s estate, has a duty to make this application to ensure that the estate is distributed to those lawfully entitled to it.
Rule 242 includes within its ambit the inherent jurisdiction of the Court to set aside any judgment or order which has been procured by fraud: Mohtar v Mohtar (1988) 146 LSJS 377. The defendant advanced such a case but, in addition, contended that the rule was not limited to such an application. It was argued that the ambit of the discretion conferred by r 242 was determined by the expression “the justice of the case so requires”. This expression was contained in SCR 84.12 of the Supreme Court Rules 1987. In Mohtar von Doussa J said (at 391):
I think the plaintiff is correct in the submission that Rule 84.12 now vests the court with wider power than previously existed, even in fresh proceedings, to vary or set aside a judgement or order entered by consent. The only expressed fetter on the discretion on the court to do so appears in the words “if the justice of the case so requires”. It does not follow, however, that all the principles which formerly governed the circumtances [sic] in which a court would order the setting aside of a consent judgment have been abandoned.
In my opinion, the cases indicate that the approach to be taken is to examine the factual circumstances forming the basis of the application to see whether or not the Court should act either to vary or to set aside the judgment or order the subject of the application bearing in mind, as von Doussa J recognised, that the finality of litigation remains, in an undiminished way, an important principle. In other words, the Court will not lightly set aside or vary previous judgments or orders. If that is the correct approach, I do not think that an applicant needs to produce evidence of fraud in order to succeed. Something less than fraud may be sufficient, provided that there is a compelling case which warrants a revocation or variation. I say “compelling” so as to give due weight to the principle of finality of litigation.
I turn now to the facts. The following affidavits were received on the application:
Affidavit of the defendant sworn 13.05.09 FDN 14
Affidavit of the plaintiff sworn 18.06.09 FDN 15
Affidavit of the plaintiff sworn 29.05.08 FDN 3
Affidavit of F sworn 17.07.08 FDN 6
Affidavit of plaintiff sworn 28.08.08 FDN 9
Affidavit of [a corroborative witness] sworn 18.07.08 FDN 7
Affidavit of the plaintiff sworn 06.06.08 FDN 4
Affidavit of Mr Witham sworn 18.07.08 FDN 8
In addition, the plaintiff tendered my reasons for decision delivered on 24 September 2008 (FDN 12) and the order with the declaration as to putative spouses (FDN 11).
The affidavit of the defendant (FDN 14) sets out a number of passages from the earlier affidavits of the plaintiff as follows:
5 In this Action the [plaintiff] swore an affidavit on the 29th day of May 2008 in which she deposed in clause 4 as follows:
“As at the date of his death and for a period of some 34 years the deceased and I were domestic partners one of the other as defined by the provisions of Section 11B of the Family Relationships Act 1975 and on such basis I seek to pursue a claim as provided by sections 6 and 7 of the Inheritance (Family Provision) Act 1972 (“the Act”).”
6In the said affidavit sworn on the 29th day of May 2008 she also swore in paragraphs 6.1 and 6.2 as follows:
“6.1I commenced a domestic relationship with the deceased in about 1970 and have thus known him very closely, until his death in April 2004.”
“6.2Throughout the period of the relationship the deceased lived at Coober Pedy and worked as a miner. He did not commence or maintain any relationship with any person other than myself.”
7A the result of a request for further particulars from my solicitors the [plaintiff] swore a further affidavit on the 28th day of August 2008. In paragraphs 13 and 14 of the said affidavit sworn on the 28th day of August 2008 she deposed as follows:
“13The deceased and I met at Coober Pedy and were introducted to each other by my father. Throughout the period of our relationship neither the deceased nor I resided at any other place than stated above nor cohabitated with any other person than each other.”
“14As I stated above, three or four days before his death I had left Coober Pedy to attend upon my ill father. Until that day I had not resided at any other place but at [a specified address] and had cohabitated with the deceased as a de facto couple until the date of his death.”
He then refers to the affidavit of F as follows:
8By way of corroboration of the application of the [plaintiff], affidavits of [F] and another deponent were filed in the Supreme Court.
9 In his affidavit sworn on the 17th day of July 2008 the said [F] gave evidence about the relationship between the deceased and the [plaintiff]. In paragraph 14 of his said affidavit he deposed as follows:
“14.I have also observed [the plaintiff and the deceased] to be very devoted to each other and to me they appeared as a very happy couple and at no time that I have known them did either of them appear to have any interest in any other person.”
It is apparent from the defendant’s affidavit that further enquiries were necessary in relation to whether or not there were any living relatives of the deceased who would take on an intestacy. Part of that inquiry included searches at the Registrar of Births, Deaths and Marriages as to whether or not the plaintiff had any children within in the period of her cohabitation with the deceased. The searches revealed that there were no registrations of birth showing the plaintiff and the deceased to be the parents of a child, but there were registrations of births showing the plaintiff to be the mother of four children born respectively on 14 September 1977, 31 July 1984, 18 September 1992 and 4 December 1995. The plaintiff was the informant in respect of the registration of birth of the second child. The certificate showed F as the father. In respect of the fourth child, F was the informant for the purposes of registration of the birth and he asserted that the plaintiff was the mother of the child and that he was the father. In the case of the other two children, the plaintiff was the informant in respect of the registration of the birth and persons other than F were named as the respective fathers of those children.
After the discovery of this information, correspondence ensued between the solicitors for the defendant and the solicitors for the plaintiff. During the course of that correspondence the plaintiff disclosed a marriage certificate recording a marriage between the plaintiff and F on 26 March 1983. That was the year in which F, who was born in Switzerland, acquired permanent residency in Australia. In addition, a copy of a decree nisi in relation to the marriage between the plaintiff and F was provided. The decree was granted on 14 November 1985 and it referred to there being no children of the marriage, notwithstanding that the plaintiff’s second child was the first child of the marriage between the plaintiff and F. That document also disclosed a residential address at Parkholme for the plaintiff, as did the birth certificates in respect of the third and fourth child. These matters are contained in the defendant’s affidavit at paragraphs 15 and 18 and the exhibits referred to therein.
These facts are inconsistent with the evidence of the plaintiff and F: the plaintiff said she always resided at Coober Pedy and F said in his affidavit sworn on 17 July 2008 [para 14]:
….. at no time that I have known them did either of them appear to have any interest in any other person.
In the correspondence between the respective solicitors the defendant’s concerns were raised and only partially answered by the plaintiff through her solicitors. In the first written response by the plaintiff’s solicitors, a letter dated 15 January 2009 (Exhibit “MIB9”) (signed not only by the solicitor but countersigned by the plaintiff) the solicitors stated:
Our client has instructed us that the significant point of fact in this matter is that the deceased was impotent in that he was unable to procure (sic) children.
This fact was central to the existence of “extra relationship” affairs into which our client was induced and in respect of which the deceased was always complicit.
Most importantly, however our client instructs us that at no time did her relationship and indeed the cohabitation with the deceased become interrupted (either due to the birth of the children involved or the alleged marriage to said [F] and was exactly as deposed to by the witnesses in the Supreme Court action.
Accordingly, our client insists that every aspect of her evidence concerning the nature and the duration of the relationship with the deceased is and always has been correct and can be further corroborated by further witnesses if and when it becomes necessary.
In her affidavit sworn on 18 June 2009 (FDN 15) the plaintiff said:
8 In reference to the various documents that have been exhibited in the Affidavit of Public Trustee referred to above and which appear to relate to matters concerning the birth of various children and an alleged marriage I say that I have provided my solicitors with full details concerning all these matters, circumstances and historical background associated with the same. However, I have instructed my solicitors that such information is of extremely private and sensitive nature and the exposition of the same, particularly in public Court documents, is very likely to cause mental hurt and emotional disturbance in the persons identified in those documents particularly the children referred to therein.
9I am informed and verily believe that I do not have any obligation to reveal such details for the purposes of the proceedings herein and further that the said Application made by Public Trustee is an abuse of the processes of the Court.
One of the corroborative witnesses whose affidavit was before the Court when the declaration was made was Ms G. She first met the plaintiff in 1997. Having met, they became “very close friends”. She visited the plaintiff at Coober Pedy where she observed that the plaintiff lived with the deceased. She said they “gave every appearance of being a happy couple and lived in a normal domestic life”. She stayed with the plaintiff and the deceased at Coober Pedy “on a regular basis”. This consisted of visits at leave 4 to 5 times each year. In addition, the plaintiff and the deceased travelled to Adelaide and stayed with Ms G. She said in relation to her dealings with the plaintiff and the deceased: “I observed that they had no children”.
The other corroborative witness was F. He was born in 1958. He migrated to Australia from the United States in 1980. He became a permanent resident in 1983. Shortly after his arrival he met the plaintiff and the deceased. When he met them he both observed and assumed they were husband and wife. He met the plaintiff and the deceased through his aunt with whom he stayed in Adelaide. The plaintiff and the deceased also stayed with F’s aunt and when they did so they “slept together … and generally behaved as a normal married couple”. He was invited to stay with the plaintiff and the deceased at Coober Pedy. Eventually he spent a considerable amount of time at Coober Pedy. When he did so he stayed with the plaintiff and the deceased. The habit of staying with the plaintiff and the deceased at Coober Pedy commenced at an unspecified time and persisted up to the date of death of the deceased. He observed that the deceased and the plaintiff occupied a bedroom in the house in which they all stayed. In paragraph 14 of his affidavit he said:
14I have also observed [the plaintiff] and the deceased to be very devoted to each other and to me they appeared as a very happy couple and at no time that I have known them did either of them appear to have any interest in any other person.
I stated earlier in these reasons that the facts had to be examined to see whether or not it was in the interests of justice that the declaration as to putative spouses should be revoked. There is one further factor which I think is important. It is that, in the circumstances of this case, the nature of the proceedings brought by the plaintiff seeking the declaration are closer to an ex-parte proceeding than to an inter-partes proceeding. Public Trustee did not oppose the plaintiff’s application for a declaration even though, in addition to being the administrator of the deceased estate, he had been appointed by the Court to represent the interest of any next-of-kin of the deceased who might take on an intestacy. In my opinion this was an appropriate stance for Public Trustee to take, given the affidavit of the plaintiff filed in support of the application for a declaration and the affidavits of the two corroborative witnesses.
In those circumstances, the Court is reliant upon the honesty of a plaintiff who seeks a declaration as to putative spouses. This is particularly so where one of the spouses is dead. In essence, the evidence to support the application can only come from the plaintiff. In most cases corroborative witnesses can only give evidence about appearances. Where, as in this case, there is no party who actively opposed the application, the plaintiff has an obligation to make full disclosure of all relevant circumstances in a manner similar to a plaintiff who applies ex parte for injunctive relief. If full disclosure is not made, the applicant for an injunction is likely to have the interim order granting injunctive relief set aside. In my opinion the same approach should be taken to applications such as this. I do not mean to suggest that in all cases where an applicant seeks an order for declaratory relief relating to the existence of the relationship of the putative spouses, or domestic partners as the current legislation provides for, there is a duty of full disclosure similar to that which applies to an applicant for an ex parte interim injunction. Some applications made for such declaratory relief are truly inter partes, adversarial proceedings and as such there is no need to impose the additional requirements of disclosure that apply when the proceedings are essentially ex parte.
In my opinion, the plaintiff was far from forthcoming in relation to the nature and duration of her relationship with the deceased. She has contended that she and the deceased lived together as man and wife for a considerable period of time. She has failed utterly to make a frank disclosure of facts which would clearly need to be considered by the Court in deciding whether or not the relevant relationship had been established as at the date of death of the deceased. Those facts are the birth of children to different fathers during the currency of the alleged relationship and the marriage to one of the men by whom she had at least one child during the period of the alleged relationship. In addition, F’s statement in his affidavit that neither the plaintiff nor the deceased appeared “to have [had] any interest in any other person” is positively misleading. He made the assertion and the plaintiff (I infer) allowed it to be made.
In my opinion, these factors create a compelling case for setting aside the declaration. I agree with the defendant that the proceedings should be re-opened to enable the plaintiff to apply, once more, for the appropriate declaration.
The plaintiff has asserted in her affidavit that she had been informed that she had no obligation to reveal the information ascertained by the defendant. This is in the context that she has had solicitors acting for her at all material times. It is a matter of considerable concern to me that, apparently on advice, the plaintiff believed that she had no obligation to reveal what has been discovered. If her solicitors were responsible for that belief, the plaintiff has been ill-advised.
In light of my conclusion that Rule 242 is broad enough in its terms to permit an order or judgment to be varied or set aside in circumstances that constitute less than fraudulent conduct on the part of the plaintiff, and in view of the fact that I have concluded that, in the circumstances of this case, the declaration should be set aside, it is not necessary for me to deal with the question of whether or not the declaration was obtained on the basis of perjured evidence. Often the Court will deal with different grounds that might be material to determine an application even though a decision on one such ground is sufficient. However, I am reluctant to proceed to an examination of the affidavit evidence adduced on this application with a view to determining whether or not it has been established that one or more of the applicant and the corroborative witnesses has committed perjury. An allegation of perjury against a witness is an accusation of serious criminal misconduct and, ordinarily, such a ground should not be taken up by the Court where the sole source of evidence adduced on the application is by way of affidavit without cross-examination of the deponents. In my opinion, the appropriate course for the Court to take is to refer the file to the Director of Public Prosecutions.
I propose to make the following orders:
1That the declaration made in the action on 24 September 2008 that the plaintiff and the deceased were as at 30 April 2004 putative spouses one of the other be set aside.
2That this action be re-opened.
3That the Registrar forward to the Director of Public Prosecutions a copy of these reasons.
I will hear the parties as to costs.
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