Neagle v Executor Trustee Australia Limited - [2006] SASC 383

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
NEAGLE v EXECUTOR TRUSTEE AUSTRALIA LIMITED & ORS
[2006] SASC 383
Reasons of Judge Lunn a Master of the Supreme Court
21 December 2006
PROCEDURE
Action under Supreme Court Civil Rules 2006 claiming under Inheritance (Family Provision) Act - held no requirement under R 91 for plaintiff to file statement of claim and can elect under R 96 to file affidavits as substitute pleadings - held R 102 enables Court to order particulars in action proceeding on affidavits - application of defendants under R 96(3) for order for pleadings by way of statement of claim, etc refused.

NEAGLE v EXECUTOR TRUSTEE AUSTRALIA LIMITED & ORS
[2006] SASC 383

Reasons on second to fifth defendants’ application that the action should proceed on pleading and not affidavits.

JUDGE LUNN: This action is brought by the plaintiff under the Inheritance (Family Provision) Act 1972 for provision out of the estate of his late wife. It was commenced on 19 September 2006 and so is governed by the new Supreme Court Civil Rules 2006 (“the Rules”). The first defendant is the Executor of the estate and it took no part in this application. The second to fifth defendants (“the beneficiary defendants”) are children and grandchildren of the deceased who are the beneficiaries under her will.
Upon issuing the summons the plaintiff did not file a Statement of claim but an affidavit deposing to the matters on which his claim is based. The second defendant has filed an affidavit setting out her grounds for opposing the claim and putting in issue a number of matters deposed to by the plaintiff in his affidavit. The third to fifth defendants have not yet filed any affidavits.
On 27 November 2006 the beneficiary defendants took out an application under R 96(3) that the action proceed on pleadings and not on affidavits. This was opposed by the plaintiff.
The application concerns the proper interpretation of the following Rules: (From the definition in Rule 4)
Pleading is a formal statement of the basis of a party’s case (see rule 90);
Note: -
For use of affidavit as a substitute pleading, see rule 96.
90 – Definition of issues in action
(1)     The issues to be resolved in an action are defined by the pleadings.
(2)     A pleading is a formal statement of the basis of a party’s case filed in the Court.
(3)     The principal pleadings are:
(a)     the statement of claim; and
(b)     the defence; and
(c)     the reply.
91 – Statement of plaintiff’s claim
(1)     Originating process for a primary or secondary action must include, or be accompanied by, a statement of the plaintiff’s claim.
Note:
It may be appropriate in some cases for the statement of the plaintiff’s claim to be made by way of affidavit (see rule 96).
(2)     However, if the originating process is endorsed with a statement to the effect that the plaintiff seeks an exemption from the obligation to file formal pleadings and files the application for exemption together with the originating process, the originating process need not be accompanied by a statement of the plaintiff’s claim but the following provisions apply-
(a)if the application is unsuccessful – the plaintiff must file and serve a statement of claim within a time fixed by the court on hearing the applications;
(b)if the application is successful – the plaintiff must comply with any alternative requirements fixed by the Court on hearing the application.
96 – Affidavit may substitute for pleading in certain cases
(1)     An affidavit is, subject to this rule, an acceptable substitute for a pleading.
(2)     If the practice directions require that a case proceed on affidavits rather than pleadings, affidavits must, unless the Court orders to the contrary, be used as substitute pleadings.
(3)     The Court may order that an action, begun on pleadings, continue on affidavits or that an action begun on affidavits continue on pleadings.
(4)     Subject to the practice directions and any order under subrule (3) an action begun on affidavit must continue on affidavits and an action begun on pleadings must continue on pleadings.
102 – Power to order further particulars of party’s case
(1)     The Court may, on its own initiative or on application, order a party to file further particulars of its case.
(2)     The further particulars are, however, to be confined to facts that are material to the party’s action.
(3)     The Court will only make an order for further particulars if satisfied that –
(a)the pleadings do not give fair notice of the party’s case; and
(b)the order is necessary to avoid substantial prejudice to the party in whose favour the order is to be made.
(4)     Unless the Court directs to the contrary, the further particulars are to be provided by substituting for an existing pleading a new pleading incorporating the further particulars required by the Court.
(5)     No pleading is defective for want of particularity unless the missing particulars would be ordered under this rule.
103 – Effect of pleadings
(1)A party must not, without the Court’s permission –
(a)introduce at the trial of an action evidence of facts that should have been, but were not, alleged in the party’s pleadings; or
(b)raise at the trial of an action issues of which notice should have been, but were not, given in the party’s pleadings.
(By the definition of “statutory instrument” in s 4 of the Acts Interpretation Act 1915 these Rules are statutory instruments. By s 14A of that Act Part 4 of that Act, which includes s 19, applies to statutory instruments, and therefore to these Rules. S 19(2)(b) provides that footnotes do not form part of the Rules).
The primary argument of the beneficiary defendants was that R 91(1) and (2) meant that the plaintiff had to file a statement of claim unless the summons had been endorsed with an application seeking exemption from the obligation to file formal pleadings and, in effect, an application was issued to allow the action to proceed on affidavits in lieu of pleadings by way of statements of claim, defence, etc. This view of R 91 is inconsistent with R 96. (For this purpose I ignore the footnote to R 91(1)). R 91(2) is not made subject to any contrary provision set out in practice directions as is R 96. If there was a practice direction that a particular type of action had to proceed on affidavits in lieu of other pleading (which there is not), the interpretation sought by the beneficiary defendants would mean that compliance with the practice direction would be subject to R91(2). Although the precise limits of its meaning are not clear, R96(1), in making an affidavit “an acceptable substitute for a pleading”, is making the affidavit a sufficient equivalent of a statement of claim to satisfy R 91(1). The definition of “pleading” in R4, and the meaning given to it in R 90, are consistent with there being pleadings other than those expressly referred to in R 90(3), and therefore allowing for affidavits, where otherwise authorised, to be treated as pleadings. Accordingly, I reject the submission that plaintiff had to file a statement of claim in compliance with R 91(1).
The alternative application was under Rule 96(3) that the action continue on pleadings by way of statement of claim, etc. I consider subrule (3) means that the action either becomes one on pleadings by way of statement of claim, etc or one wholly on affidavits in lieu of those pleadings. It does not envisage a hybrid type of pleadings where the plaintiff files an affidavit and the defendant files a defence and then the plaintiff a reply.
Unlike R 7.04(2) of the 1987 Rules, there is no requirement under these new Rules, or the practice directions, that an action under the Inheritance Family Provision Act has to proceed on affidavits. RR 91(1) and 96(2) give a plaintiff the right to elect whether to file an affidavit or a statement of claim. Once the plaintiff has made such election, the action continues on that mode of pleading unless another party can satisfy the Court under R 96(3) that it is in the interests of justice that an alternative form of pleading should be used.
Here the plaintiff does not suggest that the affidavits filed by way of pleadings can be used in lieu of evidence in chief at the trial. Because of the significant disputes on the existing affidavits, the parties want the evidence in chief given orally. This is not a case where the plaintiff needs an extension time to bring the application, and the affidavit in support of the summon can double as an affidavit in support of an interlocutory application for an extension of time.
There is clearly a major issue as to what precisely is meant in R 96 by referring to affidavits as “substitute pleadings”. As I have already ruled, they can be treated as the equivalent of a statement of claim for R 96(1). I do not intend to pursue further than is necessary to decide this application any instances of where affidavits filed under R 96 are encompassed by the term “pleading” or “formal pleadings” for the purposes of other Rules.
The following considerations are relevant here to the exercise of the discretion under R 96(3):
·The beneficiary defendants complain that some of the allegations in the statement of claim are too general, and, if they were incorporated in a statement of claim, those defendants would be entitled to particulars of them. However, R 102 on ordering further particulars is broad enough in its terms to encompass an action proceeding on affidavits. It refers to particulars of a party’s case and not of its statement of claim, defence, etc. While R 102(4) refers to substituting a new pleading incorporating particulars, I do not see this as being inconsistent with the particulars being given by filing a further affidavit. Hence there is no weight in this point.
·Counsel for the beneficiary defendants asserted that any failure of the defendants in their affidavits to deny any assertion in the plaintiff’s affidavit could result in a deemed admission of that assertion. I do not accept this. If the affidavits were tendered as evidence, there may be some substance in the point, but here they are only being used quasi pleadings. There is no equivalent of the old R 46.12 which deemed an allegation not denied to be admitted.
·The four beneficiary defendants will each have to swear and file an affidavit, whereas if they only had to file a defence it could be done in a single document. However, on many matters the deponents need only refer to the grounds of defence deposed to by another of the defendants.
·There may be some interlocutory skirmishing to obtain rulings on what Rules relating to pleadings generally apply to affidavit quasi pleadings under the new Rules. This may lead to some expense and delay, but it is likely to occur in some action in the near future.
·If the action is to be converted to pleadings by statement of claim etc., it will involve some delay and expense in duplicating the affidavits of the plaintiff and the second defendant by a statement of claim and a defence.
I consider the beneficiary defendants have not made out that it is in the interests of justice that a different form of pleading from affidavits should be used in the circumstances of this action. Accordingly, the application is dismissed. I will hear the parties on costs.