Pollack v Conlan

[2009] VCC 299

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-08-04070

SUSAN MARY POLLACK

and

KRISTINA NICOLE POLLACK	Plaintiffs
v
GEORGE VINCENT CONLAN	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2009
DATE OF RULING:	12 March 2009
CASE MAY BE CITED AS:	Pollack v Conlan
MEDIUM NEUTRAL CITATION:	[2009] VCC 0299

RULING

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Catchwords: TESTATOR'S FAMILY MAINTENANCE – application by two beneficiaries to be joined as defendants – circumstances justifying joinder – Frangos v Frangos VSCA 7 July 1994 (unreported).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M Simon	Thomas Koutsoupias
For the Defendant	Ms U Stanisich	Law 554
HIS HONOUR:

Introduction

1          Mrs Margaret Mary Peel, deceased, is the mother of the applicants, Dianne Marie Peel (“Dianne”) and Patricia Frances Wilkinson (“Patricia”), and the grandmother of the plaintiffs. She died on 12 May 2008, leaving a Will dated 20 August 2001, in which she devised and bequeathed her estate as follows:

• $100,000 to the Leukaemia Foundation;

• 25 per cent to Dianne;

• 20 per cent to Patricia;

• $50,000 to each of the plaintiffs;

• The rest of the residuary estate to Dianne and Patricia in equal shares.

2          The effect of the deceased's Will is that Dianne will receive 43 per cent of the deceased’s estate, which Dianne estimates to be $400,625, and Patricia will receive 41 per cent, which Dianne estimates to be $360,350.

3          By Writ filed on 25 September 2008, the plaintiffs claim that they are persons to whom the deceased owed a responsibility to make provision for their maintenance and support out of her estate pursuant to Part IV of the Administration and Probate Act 1958, and that the deceased fail to do that.

4          The defendant executor has, to this date, instructions from the beneficiaries to uphold the Will of the deceased.

5          By Summons filed on 3 February 2009, the applicants seek to be joined as defendants to a proceeding brought by the plaintiffs against the defendant.

The Applicants’ Case

6          Dianne swore an affidavit in support of the application on 2 February 2009. Essentially the basis upon which she makes her application to be joined as a defendant is as follows:

"My sister and I wish to be joined as additional Defendants to protect our interests; whilst the Executor is charged with upholding the Will he is also obliged to balance the interests of the Leukaemia Foundation and the Plaintiffs against our interests. We believe that we are better placed to protect our interests if we are joined as Defendants as we will be in a position to act in opposition to the Plaintiffs’ claims".

7          Patricia swore an affidavit in support on 9 February 2009 adopting the matters deposed to by Dianne in her affidavit.

8          Mr Thomas Koutsoupias, solicitor for the plaintiffs, swore an affidavit on 25 February 2009, in which he put the plaintiffs’ position opposing the application:

"The Applicants are properly represented by the Defendant and he has no conflict in continuing to represent the Estate in circumstances where there are beneficiaries of a different class of persons as the Defendant’s duty remains to uphold the will and separate representation is both unnecessary and undesirable."

The Submissions

9          Mr Simon submitted that there are no grounds made out by the applicants in their affidavits relevant to the exercise of discretion to accede to the application made by the applicants.

10        Furthermore, he submitted that in the absence of any conflict between the applicants and the defendant in his role as executor, separate representation would be both unnecessary and undesirable.

11        Ms Stanisich submitted that the applicants are concerned that if the plaintiffs are successful, then their interests will bear some of the burden of any further provision and that they desire to argue that if any further provision is made that it should be borne by the Leukaemia Foundation to whom the deceased owed no responsibility, and that their concern in being represented is, firstly, to contest the plaintiffs’ claims, and secondly, to submit that the major burden of any further provision should be borne by the Leukaemia Foundation.

The Law

12        Chapter II of the County Court Miscellaneous Rules 1999, and more particularly, Order 13.07(c), empowers the Court to direct the persons who shall be added as defendants in a claim brought under Part IV.

13        Mr Simon referred me to Frangos v Frangos[1] which was an appeal by the Official Trustee in Bankruptcy ("the Trustee") to be joined as a defendant to an Originating Motion brought by the widow of the deceased seeking further provision from his estate. The submission made by the Trustee was that he wished to protect the interest of the deceased, who was made bankrupt by a sequestration order, and that there was a potential conflict between the interests of the Trustee and those of the executors who were beneficiaries under the deceased's will.

[1]             (unreported) VSCA No. 1365/94, 7 July 1994, per Ormiston and Charles JJA

14        Ormiston JA said:

"The need to separate representation just as frequently arises where there is a risk that a particular beneficiary's interest will bear the whole or a substantial part of the burden of any further provision. In those circumstances it is inappropriate to speak of ‘mere speculation as to the course that proceedings might follow’. Of course the executors will be under a duty to uphold the will and they will be under such a duty not merely to resist the plaintiff's claim but to ensure that, if that claim is successful, the burden is borne equally, except to the extent that any beneficiary instructs them to the contrary."[2]

[2]             at 11

15        He also said:

"… I would reiterate that it does not follow that every beneficiary who wishes to be joined is entitled to be joined, nor should it be taken that I am in any way doubting the general rule that it is the duty of the executors to uphold the will and the dispositions of the testator and in most cases separate representation of beneficiaries will be both unnecessary and undesirable."[3]

[3]             at 15

16        The Court of Appeal was satisfied that “the special circumstances” of the case before it justified the making of an order that the Trustee be joined as a defendant.

17        What I have gleaned from what was said by Ormiston JA is that in most cases separate representation of beneficiaries is both unnecessary and undesirable, but where there are special circumstances, departure from that position should occur, and it seems to me that what Ormiston JA was saying was that where a beneficiary’s interest will bear the whole or a substantial part of the burden of any further provision, it constitutes a special circumstance for which leave to be joined as a defendant should be granted.

18        It may be that the defendant, in undertaking his duties as executor, and the interests of the applicants in the defence of the plaintiffs’ proceeding will merge to some degree because the defendant will no doubt be obligated to take instructions from the beneficiaries for the purpose of then undertaking his obligations as executor. However, I can see that if the executor, when left with the ultimate responsibility when giving instructions relevant to the source of the further provision, may fall into conflict with the applicants should he consider that such further provision should not come entirely from the bequest to the Leukaemia Foundation or at all.

19        It is not for me to second guess what the executor’s ultimate position will be should it be conceded that further provision should be made for the plaintiffs, however, it occurs to me that there is something in the submissions made by Ms Stanisich, and for that reason I will accede to the application made by the applicants and grant them leave to be joined as defendants.

20        I want to add that it is in the ultimate discretion of the trial judge to determine the role to be played by the applicants in the position they will occupy as defendants to the plaintiffs’ proceeding. Whilst I have no desire to unnecessarily restrict the way in which the trial judge undertakes the trial of this proceeding, it seems to me that Order 47.06(1) and (3) invest a trial judge with a broad discretion regarding the conduct of the trial.

21        Furthermore, there is authority for the proposition that where parties have the same interest, the trial judge will not permit more than one counsel to cross- examine the same witness or will not allow overlapping cross-examination.[4] Furthermore, I see no reason why supervising the admission of evidence and final addresses would not be the subject of similar restriction should they be potentially repetitious.

[4]             Williams, ‘Civil Procedure – Victoria’ - (Butterworths 2000), at paragraph 49.01.105

22        The discretion vested in a trial judge to give directions as to the conduct of the trial, as I have outlined the same, must meet the concern inherent in the submissions made by Mr Simon of the undesirability of having separate representation for the applicants.

Conclusion

23        Therefore, I find that special circumstances exist which justify granting the applicants leave to be joined as defendants.

24        I will now hear the parties on what procedural orders are required to give effect to the joinder and any other orders required for the conduct of the proceeding.

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