O'Brien v Duthie, Van Der Schoor & Prince - [2017] WASC 227

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: O'BRIEN -v- DUTHIE, VAN DER SCHOOR & PRINCE [2017] WASC 227

CORAM: MASTER SANDERSON

HEARD: 1 AUGUST 2017

DELIVERED : 1 AUGUST 2017

PUBLISHED : 9 AUGUST 2017

FILE NO/S: CIV 1118 of 2016

MATTER :Family Provision Act 1972 (WA)
The Estate of Daven John O'Brien (Dec)

BETWEEN: DAVEN JOSEPH O'BRIEN
First Plaintiff
PATRICK GRANT O'BRIEN
Second Plaintiff
AND
GLENN ALEXANDER DUTHIE, LLOYD VAN DER SCHOOR & ALLEN RAYMOND PRINCE (as Executors of the Estate of DAVEN JOHN O'BRIEN (DEC))
First Defendants
TREVOR JOHN O'BRIEN
Second Defendant
MICHAEL JAMES O'BRIEN
Third Defendant
GRAHAM VARISCHETTI
Fourth Defendant
ARIANA VARISCHETTI
Fifth Defendant
JAKE PATRICK VARISCHETTI
Sixth Defendant

Catchwords:

Family provision - Application for leave to file out of time - Whether arguable case - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff                  :     Ms E C Hensler
Second Plaintiff             :     Ms E C Hensler
First Defendants            :     No appearance
Second Defendant         :     No appearance
Third Defendant            :     No appearance
Fourth Defendant           :     Mr B W Ashdown
Fifth Defendant              :     Mr B W Ashdown
Sixth Defendant             :     Mr B W Ashdown

Solicitors:

First Plaintiff                  :     Contested Wills & Probate Lawyers
Second Plaintiff             :     Contested Wills & Probate Lawyers
First Defendants            :     No appearance
Second Defendant         :     No appearance
Third Defendant            :     No appearance
Fourth Defendant           :     Kimberley & Pilbara Lawyers
Fifth Defendant              :     Kimberley & Pilbara Lawyers
Sixth Defendant             :     Kimberley & Pilbara Lawyers

Case(s) referred to in judgment(s):

Clayton v Aust (1993) 9 WAR 364
Craig v Craig [2015] WASC 109
Girando v Girando (1997) 18 WAR 450

MASTER SANDERSON: This was the plaintiffs' application for an extension of time to bring proceedings under the Family Provision Act 1972 (WA). The application was supported by an affidavit of the first plaintiff sworn 22 January 2016 and an affidavit of the second plaintiff sworn 29 January 2016. The fourth, fifth and sixth defendants (defendants) relied on an affidavit of Allen Raymond Prince, one of the first defendants, sworn 31 August 2016. After hearing argument I dismissed the plaintiffs' application. I said I would publish reasons for that decision. These are those reasons.
Prior to the hearing the defendants objected to certain paragraphs of both of the plaintiffs' affidavits. It was the submission of the defendants that the application for the extension of time was a final determination of an issue between the parties. That being so, hearsay evidence was not permitted. The bulk of the objections were raised on this basis.
There does seem to be some doubt as to whether a decision to grant or refuse an extension of time is interlocutory or final. The question was considered briefly by the Full Court in Girando v Girando (1997) 18 WAR 450. In that case the question was raised as to whether or not leave was required to appeal against an order refusing an extension of time under the…

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.

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Details

Case: [2017] WASC 227
Decision Date: 9 AUGUST 2017

CaseChat Overview and Summary

In the matter of O'Brien v Duthie, Van Der Schoor & Prince, the dispute arose in the Supreme Court of Victoria. The plaintiff, O'Brien, sought to apply for leave to file an out-of-time family provision application, contending that the application was based on unique facts that warranted an exception to the usual time limits. The defendants, Duthie, Van Der Schoor, and Prince, opposed the application on the grounds that the plaintiff had not demonstrated that their case was arguable, and thus, should not be granted leave to proceed.

The primary legal issues the court had to resolve were whether the plaintiff had established an arguable case that depended on facts distinct from previous cases and whether the plaintiff was entitled to leave to file an out-of-time application. The court considered whether the plaintiff's case had a reasonable prospect of success and whether the application was filed within a reasonable time, taking into account the unique circumstances presented.

The court found that the plaintiff had not demonstrated that their case was arguable based on facts that differed significantly from previous cases. The court emphasised that the application of the family provision statute was not open-ended and required adherence to the statutory time limits unless there were exceptional circumstances. The court held that the plaintiff had not met the threshold for demonstrating exceptional circumstances, and thus, the application for leave to file out-of-time was dismissed. The court concluded that the plaintiff had not established a prima facie case that would warrant an exception to the usual time limits for filing a family provision application.

Orders