Public Trustee v ALZHEIMER'S Australia WA Ltd
[2014] WASC 96
•25 MARCH 2014
PUBLIC TRUSTEE -v- ALZHEIMER'S AUSTRALIA WA LTD [2014] WASC 96
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 96 | |
| Case No: | CIV:2063/2010 | 21 MARCH 2014 | |
| Coram: | PRITCHARD J | 25/03/14 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application to strike out action dismissed | ||
| B | |||
| PDF Version |
| Parties: | PUBLIC TRUSTEE ALZHEIMER'S AUSTRALIA WA LTD THE PRINCESS MARGARET HOSPITAL FOR CHILDREN FOUNDATION INC ASSOCIATION FOR THE BLIND OF WESTERN AUSTRALIA INC AUSTRALIAN RED CROSS SOCIETY (WESTERN AUSTRALIA DIVISION) TRACEY DALE KITTELTY SHANE BURNETT KITTELTY |
Catchwords: | Application to strike out action Application for summary judgment by defendant pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) Whether sufficient grounds for summary judgment to be entered for the defendant Turns on own facts |
Legislation: | Guardianship and Administration Act 1990 (WA) Public Trustee Act 1941 (WA) Rules of the Supreme Court 1971 (WA) |
Case References: | Anderson v Effxseven (Unreported, WASCA, Library No 980603C, 16 October 1998) Bride v Australian Bank Ltd (Unreported, WASCA, Library No 950632, 21 November 1995) Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Johnson v Staniforth [2002] WASCA 97 Public Trustee v Brumar Nominees Pty Ltd [2012] WASC 161 Re the Full Board of the Guardianship and Administration Board [2003] WASCA 268 The Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17 Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] 70 NSWLR 565 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ALZHEIMER'S AUSTRALIA WA LTD
First Defendant
THE PRINCESS MARGARET HOSPITAL FOR CHILDREN FOUNDATION INC
Second Defendant
ASSOCIATION FOR THE BLIND OF WESTERN AUSTRALIA INC
Third Defendant
AUSTRALIAN RED CROSS SOCIETY (WESTERN AUSTRALIA DIVISION)
Fourth Defendant
TRACEY DALE KITTELTY
Fifth Defendant
SHANE BURNETT KITTELTY
Sixth Defendant
Catchwords:
Application to strike out action - Application for summary judgment by defendant pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) - Whether sufficient grounds for summary judgment to be entered for the defendant - Turns on own facts
Legislation:
Guardianship and Administration Act 1990 (WA)
Public Trustee Act 1941 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application to strike out action dismissed
Category: B
Representation:
Counsel:
Plaintiff : Ms C F Holyoak-Roberts
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : In person
Solicitors:
Plaintiff : Public Trustee (WA)
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : In person
Cases referred to in judgment:
Anderson v Effxseven (Unreported, WASCA, Library No 980603C, 16 October 1998)
Bride v Australian Bank Ltd (Unreported, WASCA, Library No 950632, 21 November 1995)
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Johnson v Staniforth [2002] WASCA 97
Public Trustee v Brumar Nominees Pty Ltd [2012] WASC 161
Re the Full Board of the Guardianship and Administration Board [2003] WASCA 268
The Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17
Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] 70 NSWLR 565
1 PRITCHARD J: Mr Robert Arthur Kittelty (the testator) died on 6 October 2009. Prior to his death, he had made two wills - on 12 August 2009 (the 2009 will) and on 8 December 1997 (the 1997 will). The first to fourth defendants are the beneficiaries under the 2009 will. The fifth and sixth defendants are the beneficiaries under the 1997 will. The testator appointed the Public Trustee to be the executor of each will.
2 In 2010, the Public Trustee filed a writ endorsed with a Statement of Claim, seeking that the Court pronounce the force and validity of the 2009 will, and a grant of probate in solemn form to the Public Trustee. In summary, the Statement of Claim identifies the beneficiaries under each will and pleads the execution of the 2009 will, the execution of the 1997 will and the Public Trustee's appointment as the executor under each will.
3 In his Amended Defence and Substituted Counterclaim dated 6 January 2014, the sixth defendant says that the 2009 will has no force and effect for a variety of reasons, including that the testator had no legal or testamentary capacity in August 2009 and that the testator was incapable of making any disposition of his estate. In support of these contentions, the sixth defendant points to the fact that in June 2009, the State Administrative Tribunal (the Tribunal) made an order pursuant to s 64 of the Guardianship and Administration Act 1990 (WA) (the GA Act) appointing an administrator of the testator's estate, and to what he says is the effect of s 77 of the GA Act.1 The sixth defendant seeks a declaration that the 2009 will is of no effect, and the grant of probate to the fifth and sixth defendants.
4 These reasons deal with an application by the sixth defendant to strike out the action commenced by the Public Trustee (the application). The first to fifth defendants did not seek to be heard on the application.
5 For the reasons set out below, the application must be dismissed.
The basis for the application
6 An application under O 16 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC) must be made by summons supported by an affidavit verifying any facts on which the application is based.2 The sixth defendant did not file a formal application to strike out the Public Trustee's action. However, the sixth defendant outlined the bases on which he sought to strike out the action in correspondence, and in written submissions he filed. The sixth defendant did not file an affidavit in support of the application. Having regard to the nature of the grounds for the application (which were such that establishing facts by affidavit would not have materially affected the outcome of the application), to the fact that this action has been ongoing for some time and still is not ready for trial, to the fact that the sixth defendant is not legally represented, and having regard to the requirements of O 1 r 4B RSC, the preferable course was to deal with the application on the basis of the submissions made by the parties, notwithstanding the absence of a formal application or an affidavit in support of the application.
7 An application under O 16 r 1 is required to be brought within 21 days after filing an appearance, or at any later time with the leave of the Court. Clearly the application was brought well out of time. Given the views I have formed in relation to the merits of the application, I would not have granted leave to bring the application out of time, to the extent that the application relied upon O 16 r 1 RSC.
8 What was clear was that the sixth defendant did not seek to strike out the statement of claim (an earlier application to do so having been dismissed3) but rather sought the dismissal of the action in its entirety. Although the sixth defendant did not expressly rely upon it, the fact that he sought that the Public Trustee's action be dismissed suggests that his application was in essence an application for summary judgment brought either pursuant to O 16 r 1 RSC or to the Court's inherent jurisdiction. Order 16 r 1 permits the Court if satisfied that 'the action is frivolous or vexatious' or that the defendant has a good defence on the merits, to summarily dismiss the action and order that judgment be entered for the defendant. In such an application, the onus is on the defendant bringing the application to show that there is no serious question to be tried on any cause of action raised by the plaintiff.4 Once it appears that there is a real question to be tried, whether of fact or law, and that the rights of the parties depend upon it, a court will not dismiss the action as frivolous or vexatious and an abuse of process.5
The grounds for the application, and why the application is not made out
9 The application was advanced on a number of grounds which can conveniently be dealt with under six broad headings.
(i) The sixth defendant says that the Public Trustee has not pleaded his legal status or the legal basis on which he brings, and is entitled to bring, the action
10 The sixth defendant contends that there is nothing in the Statement of Claim to confirm the legal identity of the Public Trustee, or the basis on which he is entitled to bring the action.
11 In support of this submission, the sixth defendant relied upon Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis.6The New South Wales Court of Appeal held that the Catholic Archdiocese of Sydney could not be sued in its own name at common law because as an unincorporated association it did not exist as a juridical entity.7 That case does not assist the sixth defendant.
12 The Public Trustee is an officer with the status of a body corporate who administers the Public Trust Office, and is capable in law of suing and being sued.8 When the Public Trustee is appointed as the executor of a will, it is lawful for the Public Trustee to act as executor, and to apply for and obtain probate.9
13 In the Statement of Claim, the Public Trustee pleads that he is the executor of the 2009 Will and of the 1997 Will. In the absence of a pleading suggesting that the Public Trustee brings the action in any other capacity, it is clear that the Public Trustee brings the action in his capacity as executor.
14 As there is clearly a dispute about the validity of the 2009 Will, it is entirely proper for the Public Trustee to have brought the action so that the Court may resolve that dispute and determine whether probate should be granted in respect of the 2009 Will or of the 1997 Will. The action in that sense is entirely unremarkable.10
15 This ground does not constitute a proper basis for summarily dismissing the action.
(ii) The sixth defendant alleges that the Public Trustee has a conflict of interest
16 The sixth defendant alleges that the Public Trustee is a director of one of the defendants which is a beneficiary under the 2009 will, although he did not adduce any evidence that that is the case. The sixth defendant submitted that the instructions for the preparation of the testator's will had been received by an officer in the Public Trust office who drafted the will to benefit the Public Trustee. The sixth defendant also submitted that the action may have been brought by the Public Trustee on his own behalf, and that this could be discerned from the fact that in the Statement of Claim the Public Trustee is referred to as the Public Trustee rather than as the plaintiff.
17 As I have already explained, the action is clearly brought by the Public Trustee in his capacity as executor. The sixth defendant did not suggest that the Public Trustee would personally benefit under the 2009 will, but in any event, there is no reason why a beneficiary may not be an executor of a will.11
18 Accordingly, even if it is assumed for the sake of the argument that the Public Trustee is a director of one of the defendants, that does not constitute a reason why the Public Trustee may not bring the action, nor does it mean that the action can be described as frivolous or vexatious, or an abuse of process. This ground does not constitute a proper basis for summarily dismissing the action.
(iii) The sixth defendant alleges that the testator had no legal capacity, and consequently no testamentary capacity, to make the 2009 will
19 The sixth defendant submitted that pursuant to s 77 of the GA Act, the appointment of an administrator of the testator's estate meant that the testator had no legal capacity to enter into any contract or to make any disposition. The sixth defendant submitted that the loss of legal capacity resulted in a loss of testamentary capacity also. He relied on Johnson v Staniforth12 as authority for these submissions.
20 The sixth defendant also submitted that at the time that the administration order under the GA Act in respect of the testator was made, he was advised by the sessional member of the State Administrative Tribunal that the testator could not make a valid will while he was the subject of the administration order.
21 The existence of an administration order does not of itself mean that the person the subject of that order has no testamentary capacity and cannot make a valid will. Section 77 of the GA Act has no application to a will made by a person the subject of an administration order under the GA Act.13 The decision in Johnsonwas held to be wrong and was not followed by the Full Court in Re the Full Board of the Guardianship and Administration Board(the Guardianship Boardcase).14 The sixth defendant submitted that the Guardianship Boardcase was not legally binding and constituted an advisory opinion only. I reject that submission. Being the latest decision of the Full Court, and a five member Full Court for that matter, the latter decision is binding on single judges of this Court.
22 The question of whether the testator possessed the requisite testamentary capacity at the time of making the 2009 will fall to be determined on the facts established by the evidence in this action.
23 As I have already observed, on 25 June 2013 a Registrar of this Court dismissed an oral application by the sixth defendant to strike out the Statement of Claim. No transcript is available for the hearing before the Registrar, but the written submissions filed by the sixth defendant, and by the Public Trustee, in respect of that application suggest that the argument advanced by the sixth defendant on that occasion was in essence the same argument as that advanced in support of this application. Counsel for the Public Trustee submitted that to the extent that the application relied upon arguments previously raised and rejected by this Court, the doctrine of res judicata applies, and the application should be dismissed. The sixth defendant denied that the argument advanced was the same argument as that which he had unsuccessfully advanced before the Registrar. In the absence of affidavit evidence as to the grounds for the application to strike out the statement of claim, and on which that application was resolved, I have preferred to deal with the present application solely on the basis of what has been argued before me.
24 This ground for the application does not constitute a proper basis for summarily dismissing the action.
(iv) The sixth defendant contends that the Public Trustee has not pleaded certain matters which must be pleaded, and that without those pleadings the action cannot be brought
25 The sixth defendant submitted that it was incumbent upon the Public Trustee to include in the Statement of Claim a positive pleading that the testator had capacity to make the 2009 will, and that in the absence of such a pleading there was no dispute or controversy that the testator had testamentary capacity. He also submitted that the Public Trustee should have pleaded that the testator had property in the State at the date of his death, that the testator was not married, whether the action is brought pursuant to the common law or under statute, and that the relief sought is a grant of probate in respect of the 2009 will.
26 The matters relied upon by the sixth defendant were pleading points directed to the adequacy of the pleading in the Statement of Claim, rather than to whether there exists a real question to be tried in the action. The sixth defendant has already failed in an application to strike out the Statement of Claim.
27 In any event, some of the submissions made were inaccurate (for example, the Statement of Claim already includes a pleading that the testator was not married at the time of his death15). Furthermore, as the sixth defendant's Amended Defence and Substituted Counterclaim makes clear, there is clearly a controversy as to the testamentary capacity of the testator at the time he made the 2009 will. There is no doubt that the testator's estate includes property in Western Australia.16 There is no requirement to plead matters of law in a Statement of Claim, and in so far as the prayer for relief seeks the grant of probate it is clear that the Public Trustee seeks that grant in respect of the 2009 will.
28 This ground does not constitute a proper basis for summarily dismissing the action.
(v) The sixth defendant alleges that the Public Trustee owes a common law duty of care and a fiduciary duty to the fifth and sixth defendants, and that the Public Trustee has breached those duties
29 The sixth defendant submitted that the Public Trustee was under a duty only to the fifth and sixth defendants and alleged that, by commencing the action, the Public Trustee had caused harm to the fifth and sixth defendants. The basis for the duty or duties, and the breach of those duties, was not explained. Even if the sixth defendant has an arguable case that such a duty exists, and has been breached, no basis was advanced as to why that would constitute a proper basis for summarily dismissing the action.
(vi) The sixth defendant alleges that it is unconscionable for the Public Trustee to bring the action
30 The basis for this ground was not explained, and it was not clear whether this ground was relied upon independently of grounds set out at (ii) and (v) above. As it stands, this ground does not constitute a proper basis for summarily dismissing the action.
Conclusion
31 The sixth defendant's application that the action be summarily dismissed must fail. I will hear from the parties as to the orders which should be made.
1 Findings in relation to these matters were made in related proceedings in Public Trustee v Brumar Nominees Pty Ltd [2012] WASC 161.
2Rules of the Supreme Court 1971 (WA) O 16 r 1(2).
3 The application was heard and dismissed by a Registrar of the Court on 25 June 2013.
4Anderson v Effxseven(Unreported, WASCA, Library No 980603C, 16 October 1998); see also Bride v Australian Bank Ltd(Unreported, WASCA, Library No 950632, 21 November 1995).
5Dey v Victorian Railways Commissioners[1949] HCA 1;(1949) 78 CLR 62, 91.
6Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117; (2007) 70 NSWLR 565.
7Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117; (2007) 70 NSWLR 565 [47] (Mason P, Ipp & McColl JJA agreeing).
8Public Trustee Act 1941 (WA) s 4(2).
9Public Trustee Act 1941 (WA) s 8.
10 By way of a recent example of an action of this kind, see The Public Trustee v Royal Perth Hospital Medical Research Foundation Inc[2014] WASC 17.
11 Dal Pont GE and Mackie KF, Law of Succession (2013) 267.
12Johnson v Staniforth [2002] WASCA 97.
13Re the Full Board of the Guardianship and Administration Board[2003] WASCA 268 [81] (EM Heenan J, Anderson, Steytler, Miller & McLure JJ agreeing), see also [21] (McLure J).
14Re the Full Board of the Guardianship and Administration Board[2003] WASCA 268.
15 Statement of Claim [17].
16Public Trustee v Brumar Nominees Pty Ltd [2012] WASC 161.
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