SCVG and Estate of KLD (deceased)
[2020] FamCA 51
•5 February 2020
FAMILY COURT OF AUSTRALIA
| SCVG & ESTATE OF KLD (DECEASED) | [2020] FamCA 51 |
| FAMILY LAW - Practice and procedure - application by the executors as the legal personal representatives seeking to be substituted for the deceased wife – where proceedings are not property proceedings - consideration of applicable principles — whether proper for substitution order to be made – inherent jurisdiction— where order made for substitution. |
| Family Law Act 1975 (Cth) s 79(8) Judiciary Act 1903 (Cth) |
| Midhurst (Dec’d) v Midhurst (2008) 219 FLR 262; [2008] FamCA 393 Murdoch & Brown (No. 2) [2013] FamCA 732 Ryan v Davies Bros. Ltd. (1921) 29 CLR 527 |
| APPLICANT: | Mr SCVG |
| 1st RESPONDENT: | Mr Draper |
| 2nd RESPONDENT: | Ms Eaton |
| FILE NUMBER: | SYC | 5956 | of | 2016 |
| SYC | 4380 | of | 2008 |
| DATE DELIVERED: | 5 February 2020 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 3 February 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Self-representing |
| COUNSEL FOR THE 1ST & 2ND RESPONDENTS: | Mr Stenhouse |
| SOLICITOR FOR THE 1ST & 2ND RESPONDENTS: | Macphillamy's |
Orders
Mr Draper and Ms Eaton being the personal legal representatives (executors and trustees) of the late Ms KLD be substituted for the late Ms KLD in the various proceedings brought by the Mr SCVG, as pertain to and as are filed under SYC4380/2008.
Mr Draper and Ms Eaton being the personal legal representatives (executors and trustees) of the late Ms KLD be substituted for the late Ms KLD in the various proceedings brought by the Mr SCVG, as pertain to and as are filed under SYC5956/2016.
The proceedings SYC4380/2008 and SYC5956/2016 will be titled as SCVG & Estate of KLD (Dec’d).
IT IS FURTHER ORDERED THAT
The matter is listed for further directions at 4pm on 12 February 2020 for the allocation of a further date to deal with the Respondents’ objections to the pleadings/particulars filed by the Applicant.
The parties have leave to attend by telephone. The parties are to provide their telephone contact details.
Counsel for the Respondents is excused from personal attendance.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: SYC 5956 of 2016
SYC4380/2008
| Mr SCVG |
Applicant
And
| Mr Draper and Ms Eaton |
Respondents
REASONS FOR JUDGMENT
These proceedings span two matters being conveniently if not fulsomely described as the Justice Cronin matter, SYC4380/2008 and the Judge Scarlett matter, SYC5956/2016. In each of these sets of proceedings, presently conducted in the inherent jurisdiction of the Family Court of Australia, the Applicant alleges that a series of frauds underpin the judgements.
In broad terms, the Justice Cronin matters in their various forms involve an order for costs in final child related proceedings and the proceedings that have flowed from there. There is the allegation that false information was provided to Justice Cronin and so it is alleged that the result was procured by fraud. There was also an alleged fraud in relation to the nonappearance of the Applicant resulting in orders being made in the Applicant's absence.
The Judge Scarlett matters involve an underlying determination by the Child Support Agency, and ultimately by Judge Scarlett, where it is alleged that such order was procured by fraud of a similar nature to that alleged to be involved in the Justice Cronin matter.
Ms KLD, the Respondent in each of these actions, received the benefit of the now impugned orders. She was the Respondent to the applications made by the Applicant to set aside the various judgments. She is now deceased.
The question now facing the Court is whether or not Mr Draper and Ms Eaton should be substituted for Ms KLD in the various proceedings. They seek to do so on the basis that they assert that they are together the executors of the estate of the late Ms KLD. That is, they assert that they are the legal personal representatives of Ms KLD as a consequence of her will. They assert this position by means of an Application in a Case filed in respect of each of the above sets of proceedings, each supported by affidavit material. That affidavit material has, as documents associated with each affidavit, the will of Ms KLD, along with a death certificate evidencing her demise.
Their application is opposed by the Respondent, although he has filed no response or evidence. He asserts orally in Court that he will contest Ms KLD’s will on the basis of what he terms ‘undue influence’.
The parties accept that the scope of outcomes available as a result of today's proceedings are either the appointment of Mr Draper and Ms Eaton or the adjournment of the proceedings to await a grant of probate from the relevant Supreme Court or Supreme Courts.
There are some statutory provisions embedded within the Act and Rules that deal with the substitution of a legal personal representative on the death of a party. Section 79(8) provides jurisdiction of the Court to do so in property proceedings. However, that power is predicated on the proceedings being in relation to property. It points to a restricted jurisdiction to allow proceedings to continue in relation to property under the Family Law Act1975 (Cth). It was conceded that this provision, and the Rules that support it, are not applicable to the current circumstances as the proceedings are not property proceedings.
Rather, it was asserted, that as the ongoing conduct of this litigation is founded on the inherent jurisdiction to prevent an abuse of the Court’s processes, the authority to appoint Mr Draper and Ms Eaton also occurs within that inherent jurisdiction.
I was taken to High Court authority in the form of Ryan v. Davies Bros. Ltd. (1921) 29 CLR 527 which dealt with a situation wherein the High Court determined that the substitution of the legal personal representative was appropriate in appeal proceedings. The Court noted
As a general rule the death of a party pending appeal does not destroy and end the appeal. It may be continued by appropriate proceedings.[1]
[1]Ryan v. Davies Bros. Ltd. (1921) 29 CLR 527, 532.
The Court further noted that even where the legal personal representative would not have had authority to commence the proceedings at first instance
The right of action for the original wrong has merged in the judgment, and a new, higher and different obligation has been created by the judgment.[2]
[2] Ibid 533.
They noted that
The right to enforce the judgment survives to the personal representative of the deceased… and also the right to maintain that judgment to a Court of final appeal.[3]
[3]Ryan v. Davies Bros. Ltd. (1921) 29 CLR 527, 533.
That is, there is a right on the part of the legal personal representative to be substituted in an appeal. It should be noted that, similarly, the application to substitute Mr Draper and Ms Eaton does not occur in the context of first instance proceedings. Rather, the proceedings occur in the context of orders having been finalised both by Justice Cronin and Judge Scarlett. The application to set aside is analogous to the position on appeal identified in Ryan v. Davies Bros. Ltd. (1921) 29 CLR 527.
The Court also identified that the status that enables a person to stand in the shoes of the deceased is not reliant upon a grant of probate. Rather
The executor, however, takes his title from the will of the testator and not from the probate.[4]
[4] Ibid 536.
That is to say, it is the will that founds the status that would enable Mr Draper and Ms Eaton to substitute for the late Ms KLD. This is a point echoed in the decision of Justice Cronin in Murdoch & Brown (No. 2) [2013] FamCA 732.
The Applicant, however, resisted the substitution of Mr Draper and Ms Eaton, basing that upon his reading of a decision of Dawe J in Midhurst (Dec’d) v Midhurst (‘Midhurst’).[5] There, her Honour was faced with a rather different state of affairs to those that face this Court. Sitting in South Australia, her Honour was confronted with the husband asserting his right as executor of the estate pursuant to the will of the deceased, with the daughter of the deceased asserting her right to be substituted on the basis of what she asserted was another testamentary document. The Applicant, pointing to his asserted forthcoming challenge (an assertion made without any evidential support whatsoever) sought to bring himself within the comments made by her Honour in Midhurst.
[5] (2008) 219 FLR 262.
In Midhurst, her Honour declined to make any determination as to who might be the legal personal representative. That, however, was because she determined that the Family Court of Australia was not in a position to determine who the legal personal representative was.[6] That was because the evidence did not enable any such conclusion to be drawn because the operation of South Australian law procedurally bound the Family Court of Australia by virtue of the operation of the Judiciary Act 1903 (Cth). That meant that her Honour was unable to receive the testamentary documents into evidence. Absent the testamentary documents, her Honour was unable to make any finding whatsoever as to who the executor might be or who the legal personal representative might be.
[6]Midhurst (Dec’d) v Midhurst (2008) 219 FLR 262 [53].
No such restriction was identified here in relation to the admission of the will and on the admission of the will as an associated document to the affidavits of Mr Draper and Ms Eaton, with no evidence to counter what was tendered, each was identified as an executor under that will.
Conclusion
These are interlocutory proceedings. The purpose of these interlocutory proceedings is to determine who the proper parties are for the conduct of the proceedings. That requires the identification of the legal personal representatives. That question is determined by identifying who the executors are of the will of the late Ms KLD. The identity of Mr Draper and Ms Eaton is established by their affidavit, by the will and by the death certificate. That demonstrates their status on the balance of probabilities as the executors to the will of Ms KLD and to her estate. Accordingly, they are established to be the legal personal representatives.
It might be noted that should a grant of probate conflict with this determination then there will be a need for reconsideration as to who the proper parties might be.
However, for the purposes of the application that has been made it has been sufficiently established that Mr Draper and Ms Eaton are the executors, and are the legal personal representatives. They should be substituted for Ms KLD in the proceedings.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 5 February 2020.
Associate:
Date: 5 February 2020
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