Scott v Scott - [2022] SASCA 33

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
SCOTT & ANOR v SCOTT & ANOR
[2022] SASCA 33
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
7 April 2022
SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - MATTERS RELATING TO BENEFICIARIES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FURTHER EVIDENCE
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES - PARTIES
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS
By Notice of Appeal dated 26 November 2021, the appellant sought to appeal against the judgment of a Master of this Court dated 10 August 2021, his supplementary reasons dated 25 October 2021, and his orders made on 4 and 22 November 2021 concerning provision made out of her deceased mother's estate for her disabled siblings. The appellant sought to appeal in her capacity as both executrix of the estate of the deceased and as the sole beneficiary of the deceased’s estate. The appellant sought the production of subpoenaed documents and she sought to tender other documents in support of her case.
The appeal grounds are difficult to discern, but include reliance on the forfeiture rule.
Held (the Court), dismissing the appeal:
1.The documents the subject of the various subpoenas and the other documents relied on by the appellant are not received. There is no basis to find that the rules relating to fresh evidence have been satisfied and they are of no evidentiary value in these proceedings, including in so far as they relate to the forfeiture issue.
2.The appellant is disjoined as appellant and joined as the third respondent in her capacity as executrix.
3.The appellant has not established any material error of fact or law and the provision made to each respondent was within the discretion of the Court.
4.The respondents are to have the costs of the appeal on an indemnity basis. The appellant is to pay these costs personally and she is not to be indemnified for those costs out of the estate. To the extent of any shortfall, the respondents' costs will be met out of the estate.
5.The appellant is not to have her costs as executrix, whether as appellant or third respondent, paid out of the estate.

Inheritance (Family Provision) Act 1972 (SA) s 7; Uniform Civil Rules 2020 (SA) ss 3.1, 143.1, 143.2, 212.3(1)(a)(i), 254.15; Criminal Law Consolidation Act 1935 (SA); Defamation Act 2005 (SA); Supreme Court Act 1935 (SA) s 50(2); Survival of Causes of Action Act 1940 (SA) s 2, referred to.
Scott & Anor v Scott & Anor [2021] SASC 96; Scott & Anor v Scott & Anor (No 2) (Supreme Court of South Australia, Judge Dart, 25 October 2021); House v The King (1936) 55 CLR 499; Norbis v Norbis (1986) 161 CLR 513; Tiburzi v Butler [2017] SASCFC 89; Pizimolas v Pizimolas (2010) 108 SASR 153; In the Estate of Wardle, deceased (1979) 22 SASR 139; Scott & Anor v Scott & Anor (Supreme Court of South Australia, Chief Justice Kourakis, 11 February 2021); Hunt & Anor v Judge Russell & Anor (1995) 63 SASR 402, considered.

SCOTT & ANOR v SCOTT & ANOR
[2022] SASCA 33
Court of Appeal – Civil: Livesey P, Doyle and David JJA

THE COURT (ex tempore): This is an appeal against the judgment of Judge Dart in Scott & Anor v Scott & Anor dated 10 August 2021,[1] his supplementary reasons in Scott & Anor v Scott & Anor (No 2) dated 25 October 2021,[2] and the orders made on 4 November and 22 November 2021. Susan Jane Scott is the appellant, both as executrix of the Estate of Alice Barbara Scott (the deceased) and in her capacity as the sole beneficiary of the estate of the deceased (the estate). As will be seen, it will be necessary to make an order that, in her capacity as executrix, she be disjoined as appellant and joined as a respondent.
[1] Scott & Anor v Scott & Anor [2021] SASC 96.
[2] Scott & Anor v Scott & Anor (No 2) (Supreme Court of South Australia, Judge Dart, 25 October 2021).
Background
This matter concerns a dispute between siblings over the estate of their mother, the deceased, who died on 18 April 2018. The deceased had four children: the appellant, Susan Jane Scott, the first respondent, Helen Elizabeth Scott, and the second respondent, Robert Anthony Scott. Unfortunately, the second respondent passed away on 12 April 2021. Thereafter, the fourth child, David Alexander Scott, was joined as a respondent to these proceedings as administrator of the second respondent’s estate.
The appellant was the sole executrix and sole beneficiary of the deceased’s estate according to the last will and testament executed by the deceased on 9 December 2005. The will made no provision for the respondents. Probate of the will was granted in April 2019. As at the date of probate, the net value of the estate was $531,413.18.
The first and second respondents each brought claims in this Court for “adequate provision for maintenance, education or advancement in life” from the estate of the deceased pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) (IFPA). The first and second respondents suffered from Friedrich’s Ataxia, a degenerative neurological condition, and are reliant on the National Disability Insurance Scheme. The first and second respondents had limited personal assets. The appellant denied that any provision from the deceased’s estate should be made to the respondents.
A trial of this matter was heard by Judge Dart on 10 March 2021. The appellant did not attend. On 10 August 2021, Judge Dart handed down his reasons and allowed the applications of both the first and second respondent.[3] His Honour made a provision of $15,500 to the second respondent to reflect the diminution of his estate from the date of the deceased’s death up until his own death. In relation to the first respondent, Judge Dart said “[o]n any view, she is a person with significant disabilities, who was left nothing in her mother’s will in circumstances where she has significant need”.[4] His Honour held that the first respondent should receive a provision of $300,000. The appellant appeals against these orders.
[3] Scott & Anor v Scott & Anor [2021] SASC 96.
[4] Scott & Anor v Scott & Anor [2021] SASC 96, [36] (Judge Dart).
On 25 October 2021, Judge Dart delivered reasons supplementary to those handed down on 10 August 2021.[5] The parties had brought to the attention of the Court a fact that had previously been overlooked at the hearing in March 2021, which was that the respondents’ father had passed away in December 2020 and the respondents were beneficiaries of their father’s estate. On 27 August 2021, the first respondent received the sum of $145,108.67 from her father’s estate. After reconsidering the matter, Judge Dart held that it was not appropriate to vary the first respondent’s provision from the deceased’s estate as she “is severely disabled and has high dependency needs” and “[h]er needs now and into the future are very significant”.[6] The appellant appeals against this order.
[5] Scott & Anor v Scott & Anor (No 2) (Supreme Court of South Australia, Judge Dart, 25 October 2021).
[6] Scott & Anor v Scott & Anor (No 2) (Supreme Court of South Australia, Judge Dart, 25 October 2021), [6].
On 4 November 2021, Judge Dart made formal orders, including inter alia that the first respondent and second respondent each receive a legacy of $300,000 and $15,500, respectively, from the deceased’s estate. The appellant appeals against those formal orders.
By her Amended Notice of Appeal dated 11 February 2022, the appellant seeks judgment, summarily dismissing the respondents’ action pursuant to rr 143.1 or 143.2 of the Uniform Civil Rules 2020 (SA) (UCR). The appellant, who is unrepresented, does not expressly seek the setting aside of the orders of Judge Dart. The appellant also seeks various orders relating to the production and inspection of documents held by various institutions which have been returned on subpoena, and she seeks the tender of various other documents.
Grounds of Appeal
The grounds of appeal upon which the appellant relies are somewhat confused and difficult to discern, but include references to: “premisses of action”; overarching duties of honesty pursuant to r 3.1 of the UCR; laws against perjury pursuant to the Criminal Law Consolidation Act 1935 (SA); the Defamation Act 2005 (SA); the Australian Solicitors’ Conduct Rules; judicial impartiality; procedural fairness, the presumption of innocence; standards of proof; and testamentary freedom pursuant to art 1 of the International Covenant on Civil and Political Rights.[7]
[7] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
In relation to the appellant’s Amended Notice of Appeal filed on 11 February 2022, the first respondent submits that none of the contentions raised in paragraphs 1 to 11 under the heading of “Summary: Profits of Crime” have any merit. Those paragraphs include submissions that Judge Dart claimed ownership of the deceased’s estate, the deceased’s human and civil rights were destroyed, and Judge Dart made a decision with no evidence.
As to paragraphs 12 to 22 (inclusive) under the heading of “Claim”, the first respondent contends that the appellant’s submissions are not based on any relevant evidence. These include assertions that “it is apparent” that legal representatives were involved in a conspiracy to pervert the course of justice and defraud the deceased’s estate and that the Statement of Claim filed by the first respondent was “fraudulent”.
In relation to paragraphs 25 to 45, which appear to relate primarily to assertions of apprehended and actual bias by Judge Dart, the first respondent contends that there is no basis for any assertion of bias.
As to paragraph 49, the first respondent submits that the appellant complains generally that Judge Dart made errors without identifying exactly what those alleged errors were. The first respondent submits that paragraphs 57 to 61 of the Amended Notice of Appeal effectively challenges the validity of the IFPA and any legal authority to vary the distribution of the deceased’s estate from that provided by her will.
The first respondent contends there has been no relevant error and that the appeal should be dismissed.
The second respondent contends that the appellant’s appeal grounds can be generally distilled into the following contentions, none of which have any merit:
1.The onus of proof for a provision claim should be the criminal standard.
2.A claim for provision is unjust and the IFPA has no jurisdiction.
3.The appellant was denied procedural fairness.
4.The two-stage process applied to claims for provision did not result in a just and sufficient consideration of the application.
5.The respondents did not file evidence relating to their claims.
6.The Master was in error in failing to apply the forfeiture rule.
7.There was actual and apprehended bias by the Master.
The second respondent contends that Judge Dart acted upon correct legal principles and made no error of fact or law and that the appeal should be dismissed.
Nature of the appeal
Pursuant to s 50(2) of the Supreme Court Act1935 (SA) and r 212.3(1)(a)(i) of the UCR the appeal lies to the Court of Appeal; the appellant does not require leave to appeal. The principles concerning appellate review of discretionary decisions apply to this appeal.[8]
[8] House v The King (1936) 55 CLR 499. See also Norbis v Norbis (1986) 161 CLR 513; Tiburzi v Butler [2017] SASCFC 89, [85] (Doyle J, with whom Vanstone and Parker JJ agreed).
The hearing today was set down by Doyle JA on 4 February 2022 and confirmed on 25 March 2022. On 28 March and 4 April 2022, the appellant filed what were described as “Draft Orders”, but which were in fact submissions.
The first of these sought production of subpoenaed documents in support of the forfeiture issue. The second featured submissions on various matters including under such topics as “Defence as Delinquent”, “CLAIMS AS PRESUMPTIONS”, “MALICE bears down TRUTH”, “Defence of Testamentary Freedom”, “mob rule, the law as dog whistles” and “Against ‘trial’”. It culminated in the request that today’s hearing not proceed and that the Court determine the appeal on the papers.
The parties were advised that today’s hearing would proceed and the parties were required to appear.
Judge Dart’s reasons
The trial before Judge Dart proceeded by way of summary determination pursuant to r 254.15 of the UCR. All evidence was received by affidavit. There was no oral evidence from any witness. The appellant did not attend the trial. Rather, the appellant relied on the affidavits and written submissions filed by her in the proceedings.
Judge Dart set out the relevant principles in determining a claim under s 7 of the IFPA. His Honour outlined the applicable two-stage process requiring first, a determination whether the applicant has been left without adequate provision; and, if so, second, a decision as to appropriate provision.[9] His Honour noted that the jurisdictional question is to be considered as at the date of death of the testator. The discretionary question is to be considered as at the date on which the orders are made.[10]
[9] Scott & Anor v Scott & Anor [2021] SASC 96, [7] (Judge Dart).
[10] Tiburzi v Butler [2017] SASCFC 89, [74] (Doyle J, with whom Vanstone and Parker JJ agreed).
Judge Dart said that he needed to determine what the moral duty of the testator was at the time of her death. He noted the tension between the statutory scheme allowing the Court to award further provision by way of an amendment to the will of the deceased, and the entitlement of a person to freely make a testamentary distribution as they see fit.[11]
[11] Scott & Anor v Scott & Anor [2021] SASC 96, [13] (Judge Dart).
Judge Dart acknowledged that the task for the Court is limited to the making of an adequate provision for a claimant who satisfies the jurisdiction requirement.[12] If jurisdiction is found, then an assessment of an appropriate provision is undertaken. The Act does not otherwise authorise the Court to interfere with the will. His Honour considered the case of Pizimolas v Pizimolas as relevant to his determination.[13] In that matter, the Full Court relevantly held that a person with a disability should receive a greater provision than his siblings who had no disability.
[12] Scott & Anor v Scott & Anor [2021] SASC 96, [14] (Judge Dart).
[13] Pizimolas v Pizimolas (2010) 108 SASR 153.
Judge Dart accurately set out the respective positions of each party. His Honour noted that the second respondent had died after the conclusion of the trial and applied the test enunciated in In the Estate of Wardle (deceased).[14] In Wardle, Zelling J held that an application under the IFPA is a cause of action that survives the death of an applicant under s 2 of the Survival of Causes of Action Act 1940 (SA). Judge Dart found that the estate of the second respondent was to be reimbursed by the amount the estate was diminished by the deceased’s failure to make adequate provision from the date of the deceased’s death until the second respondent’s death.[15] This was calculated at $15,500. No coherent challenge has been made to this aspect of the decision.
[14] In the Estate of Wardle, deceased (1979) 22 SASR 139 (Wardle).
[15] Scott & Anor v Scott & Anor [2021] SASC 96, [34] (Judge Dart).
As to the first respondent, Judge Dart concluded that the jurisdictional question was satisfied. His Honour noted that “she is a person with significant difficulties, who was left nothing in her mother’s will in circumstances where she has significant need”.[16] His Honour said that she has no capacity to generate income and is reliant on support from social security. Judge Dart considered that a significant provision was required and found that the first respondent should receive a provision of $300,000.
[16] Scott & Anor v Scott & Anor [2021] SASC 96, [36] (Judge Dart).
Judge Dart correctly noted that the appellant had put no evidence before the Court as to her financial situation, the consequence being that the Court was left to infer that she has adequate resources and does not wish to advance a competing claim.
The appellant does not appear to challenge any factual findings made by Judge Dart and, in any event, we are satisfied his findings were based upon a proper assessment of all the evidence in the matter. We do not accept the contention that the respondents did not file evidence supporting their claims. We are also satisfied that Judge Dart applied the correct legal principles in his consideration of the claims for provision and in relation to the effect of the first respondent’s receipt of a benefit from her father’s estate.[17]
[17] Scott & Anor v Scott & Anor (No 2) (Supreme Court of South Australia, Judge Dart, 25 October 2021), [6].
We are also satisfied that Judge Dart properly considered and accurately summarised the submissions put by the respondents at trial. The respondents’ position was put by way of affidavits filed with the Court and taken into account by Judge Dart. There is no basis to suggest that the appellant was denied procedural fairness.
As to the complaint that Judge Dart failed to apply the forfeiture rule, on 19 January 2021, his Honour struck out the paragraphs of the appellant’s amended defences (FDNs 43 and 44) which sought to preclude provision by operation of that rule. The appellant did not appeal that interlocutory order. No coherent basis for the allegation that the respondents were involved in the death of their mother has ever been laid out. In any event, we are satisfied there was no evidentiary basis for an application of the forfeiture rule to the issues to be determined by Judge Dart, and his Honour was correct in striking out those aspects of the defence.
The appellant has not established any material error of fact or law. There has been no relevant error disclosed in connection with the exercise of discretion. We are satisfied that the provision made to each respondent was within the discretion of the Court.
There is no basis for the appellant’s assertion of actual or apprehended bias by Judge Dart.[18]
[18] See Scott& Anor v Scott & Anor (Supreme Court of South Australia, Chief Justice Kourakis, 11 February 2021).
As for the documents the appellant seeks to tender on appeal, they are not received. There is no basis to find that the rules relating to fresh evidence have been satisfied and they are of no “evidentiary value” in these proceedings, including insofar as they relate to the forfeiture issue.[19] The appellant is disjoined as appellant and joined as third respondent in her capacity as executrix. That is necessary to reflect that this litigation was pursued by the appellant in order to pursue her own financial interests.[20]
[19] Hunt & Anor v Judge Russell & Anor (1995) 63 SASR 402, 409 (Perry J).
[20] See Scott & Anor v Scott & Anor (Supreme Court of South Australia, Judge Dart, 9 February 2021).
We dismiss the appeal. The orders of the Court are:
1.The documents the subject of the various subpoenas and others relied on by the appellant are not received.
2.The appellant is disjoined as the first appellant and joined as third respondent in her capacity as executrix.
3.The appeal is dismissed.
4.The respondents are to have their costs of the appeal on an indemnity basis. The appellant is to pay those costs personally and she is not to be indemnified for those costs out of the estate. Insofar as there is a shortfall, the respondents’ costs are to be paid out of the estate.
5.The appellant is not to recover her costs, if any, incurred in her capacity as executrix out of the estate, whether as appellant or third respondent.