N v Public Trustee (No 2) - [2009] SASC 293

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading N v Public Trustee (No 2)

Details

AGLC: N v Public Trustee (No 2) [2009] SASC 293
Case: [2009] SASC 293
Decision Date: 23 September 2008

CaseChat Overview and Summary

The case of N v Public Trustee (No 2) involved the plaintiff seeking a declaration that she and the deceased were putative spouses. The Public Trustee, who was the administrator of the deceased’s estate, applied to set aside the declaratory order, arguing that the plaintiff had not disclosed material information about her other relationships and marriage. The primary legal issues were whether the plaintiff had a duty to make full disclosure in her application for a declaratory order and whether the court had the inherent jurisdiction to set aside the order if the plaintiff had failed to make such disclosure.

The court held that the plaintiff had an obligation to make full disclosure of all relevant circumstances in a manner similar to an applicant for an ex parte interim injunction, particularly since the Public Trustee did not oppose the application. The court found that the plaintiff had failed to disclose facts such as the birth of children to different fathers during the period of the alleged relationship and her marriage to one of those men. The court concluded that these omissions created a compelling case for setting aside the declaration and reopening the action. The court also noted that the plaintiff’s belief that she had no obligation to disclose this information was concerning, especially if it was based on advice from her solicitors.

The court ordered that the declaration made in the action on 24 September 2008 be set aside and that the action be reopened. Additionally, the court proposed to refer the file to the Director of Public Prosecutions due to the serious nature of the allegations of perjury. The court also noted that it would hear the parties regarding costs.

Orders