Secretary, Department of Communities and Justice v Or

[2019] NSWSC 1267

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Secretary, Department of Communities and Justice v OR [2019] NSWSC 1267
Hearing dates:	20 September 2019
Date of orders:	20 September 2019
Decision date:	23 September 2019
Jurisdiction:	Equity
Before:	Robb J
Decision:	See par [52]
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	A Ltd v J [2017] NSWSC 736 A Ltd v J (No 2) [2017] NSWSC 896 Re Fenwick; Application of JR Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530 Small v Phillips [2019] NSWCA 222
Texts Cited:	Ritchie’s Uniform Civil Procedure NSW
Category:	Principal judgment
Parties:	Secretary, Department of Communities and Justice (plaintiff) OR (defendant)
Representation:	Counsel: V Hartstein (plaintiff)   Solicitors: Crown Solicitors (plaintiff) Ex parte (defendant)
File Number(s):	2019/295071

Judgment

1. These proceedings were commenced and determined in an after-hours sitting of the Court in its Duty List on Friday, 20 September 2019.

2. The plaintiff is the Secretary, Department of Communities and Justice (the Secretary). The defendant is a person who is named in the summons, but for the sake of his anonymity I will refer to him as “OR”.

3. The purpose of the Secretary’s application was to apply for the authorisation by the Court under s 18 of the Succession Act 2006 (NSW) (the Succession Act) of a will to be made on behalf of a minor, who lacks testamentary capacity, in the terms of the proposed will that was annexed to the summons.

4. I will call the young person the subject of this application AR. The young person was born on 26 August 2005, so he is now 14 years’ old. According to the evidence of the paediatrician who is primarily responsible for AR's care, AR suffers from the following medical conditions:

1.   Dandy Walker Malformation.

2.   Ventriculo-peritoneal shunt in situ.

3.   Severe brain injury resulting in Spastic Quadriplegia/Cerebral Palsy (GMFCS Level 5).

4.   Global development delay with severe intellectual disability – non-verbal.

5.   Tracheostomy for airway and secretion management.

6.   Severe (R) bronchial narrowing with bronchiestasis to both lungs.

7.   Epilepsy.

8.   Severe scoliosis – non-mobile.

9.   Gastric-jejunal enterally fed.

5. There is evidence that AR was born with Dandy Walker Malformation, which meant that he needed a shunt to drain fluid from his brain. When he was approximately two years’ old, there was a malfunction with the shunt which led to a severe brain injury.

6. AR was awarded substantial compensation, as a result of a medical negligence claim. As of 20 September 2019, the value of AR's trust fund was $3,711,912.54. The trust property includes a residential property valued at $526,000, which was purchased in early 2011 for the purpose of being modified to meet AR's special needs. The evidence is that the property was purchased in AR's name with the approval of the trustee.

7. AR's mother, whom I will call MR, died on 3 May 2019 as a consequence of metastatic oesophageal cancer. Consequently, OR is AR's only surviving parent.

8. AR has two siblings, a sister, whom I will call SR, who is currently nine years’ old, and a brother, whom I will call YR, who is eight.

9. On 26 July 2019, the Children's Court of New South Wales made orders pursuant to s 79 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) that all aspects of parental responsibility for AR and his two siblings are allocated to the Minister for Communities and Justice until further order.

10. The Secretary made the urgent application for what is commonly called a statutory will because of the following recent, and unexpected, deterioration in AR's health, as described by his treating paediatrician and clinical nurse consultant in a report dated 19 September 2019:

[AR] has been admitted to [Hospital] since 6 August 2019 with signs of an upper gastrointestinal bleed (now resolved) and the multi-antibiotic resistance bacterial chest infection.

[AR] has been actively treated with intravenous and nebulised antibiotics and intensive chest physiotherapy.

Unfortunately despite rigorous treatment for [AR's] clinical condition he remains fragile and in particular two weeks ago he significantly deteriorated requiring multiple emergency team response calls over a few days and was critically unwell. All medical team members remain guarded regarding [AR's] ability to fully recover from this current illness back to his previous baseline state. Indeed, the possibility of [AR] suffering a cardiac arrest if he does not recover is still of significant concern. In very unwell children a cardiac arrest is usually a terminal event just prior to death.

Due to [AR's] pre-existing severe intellectual and physical disabilities he is currently cognitively and physically unable to sign legal documentation.

11. AR's treating paediatrician has recommended to the Secretary by report dated 29 August 2019:

Our concern at present is that if [AR] continues to deteriorate he could have a cardiac arrest – where his heart stops beating. In very unwell children a cardiac arrest is usually a terminal event just prior to death. If [AR], despite all of our active treatment, had a cardiac arrest it would be his body's way of telling us that he is about to die.

Our recommendation and advice if he were to have a cardiac arrest is that it would be futile to attempt to restart his heart in this terminal situation with Adrenaline medication or to do chest compressions to try to maintain his blood circulation.

He is already severely disabled from his severe neurological problems and if he were to, unlikely though it is, survive a cardiac arrest – his neurological state and quality of life would undoubtedly be significantly worse than his present state of functioning…

12. The caseworker for AR, in her 20 September 2019 affidavit, gave evidence that she had been informed that, as AR's antibiotic medication ceased on 19 September 2019, it was feared that AR would not survive the next few days.

13. The effect of s 128 of the Succession Act is that, if AR dies intestate, OR will become entitled to the whole of his estate, to the exclusion of AR's siblings.

14. The substantive effect of the will annexed to the Secretary's summons is that all of AR's property, after payment of any liabilities of his estate, will go to his siblings in equal shares as tenants in common, to the exclusion of OR.

15. The will contains consequential provisions, including for the establishment of a trust fund for the siblings.

16. At the end of the hearing, I in substance made the orders sought by the Secretary. I did so in part because of the evidence that AR is suffering from an antibiotic resistant bacterial infection and could well die at any time. These are the reasons why I made the orders that were made.

17. Section 18 of the Succession Act authorises the Court, on application by any person, to make an order authorising a will to be made, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity. Such a will is commonly referred to as a statutory will.

18. The effect of s 18(3) is that the Court may not make an order under this section unless the person in respect of whom the application is made is alive when the order is made.

19. It is this limitation on the Court's power to make a statutory will that has caused the Secretary to make the urgent application in this case, and it is also the reason why the Court decided the application immediately. If AR were to die over the weekend, or before the application could be brought before the Court on a fully contested basis, then the opportunity to make a statutory will in the terms sought by the Secretary would be lost.

20. Section 18(4) of the Succession Act permits the Court to make a statutory will on behalf of a person who is a minor and who lacks testamentary capacity.

21. Section 19(1) of the Succession Act requires that a person must obtain the leave of the Court to make an application to the Court for an order under s 18.

22. Sub-section (2) of that section stipulates the information that the person applying for leave must give the Court (unless the Court otherwise directs). I am satisfied that the Secretary has complied with this requirement. I note that, because of AR's physical and mental condition, he has been unable to express any wishes, and it is unlikely that he will acquire testamentary capacity.

23. Although I was satisfied that the Secretary has complied with the requirements of s 19(2) of the Succession Act, it must be recognised that the urgency of the application has limited the amount of information that the Secretary has been reasonably able to provide to the Court, particularly in relation to the requirements of sub-par (j) being: "any evidence available to the applicant, or that can be discovered with reasonable diligence, of the circumstances of” OR. OR is a person for whom provision might reasonably be expected to be made by will by AR.

24. Section 20 of the Succession Act authorises the Court, on the hearing of an application for leave, to give leave and allow the application for leave to proceed as an application for an order under s 18, and, if satisfied of the matters set out in s 22, to make the order. That is what has been done in the present case.

25. Section 22 of the Succession Act, which governs the circumstances in which the Court is empowered to make a statutory will, is in the following terms:

The Court must refuse leave to make an application for an order under section 18 unless the Court is satisfied that:

(a)   there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will, and

(b)   the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity, and

(c)   it is or may be appropriate for the order to be made, and

(d)   the applicant for leave is an appropriate person to make the application, and

(e)   adequate steps have been taken to allow representation, as the Court considers appropriate, of persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought.

26. In relation to the requirement in par (a), the evidence before the Court established that there was reason to believe that AR is incapable of making a will, given that he is a minor, and in any event he does not have mental capacity.

27. I was also satisfied that the requirement in s 22(d) had been established, as the Secretary made the application on behalf of the Minister, who presently has parental responsibility for AR.

28. The primary question was whether the requirements in sub-pars (b), (c), and (e) were satisfied.

29. As to the requirement that the proposed will is, or is reasonably likely to be, one that would have been made by AR if he had testamentary capacity, the evidence primarily relied upon by the Secretary was an affidavit made by AR's mother, MR, on 19 December 2018, in proceedings that she instituted in the Family Court of Australia in support of an application for a parenting order designed to ensure that, after MR's possible impending death, the three children were cared for by someone other than OR.

30. Section 21 of the Succession Act permits the Court, in considering an application for an order under s 18, to have regard to any information given to the Court in support of the application under s 19, and to inform itself of any other matter in any manner it sees fit, and it is not bound by the rules of evidence.

31. Given the urgency with which these reasons have been prepared, I will not set out the effect of this evidence in detail, but I have had regard to all of it. I have also taken into account the evidence in, and the other attachments to, the caseworker's affidavit dated 20 September 2019.

32. In short, MR deposed in an apparently credible way to the fact that she had always been the carer for AR and the other two children, and that OR has never supported AR, and had indicated to MR that, should anything happen to her, to the extent that she could no longer care for AR, OR would ensure that AR was placed in respite care.

33. MR deposed that she and OR separated on a final basis on 7 March 2015, and OR had not been involved with AR and the other children since that date.

34. In a detailed way, MR deposed to being subjected to a history of frequent, severe and degrading domestic violence and abuse since her marriage to OR on 20 March 2004.

35. According to the matters deposed to by MR, OR's violent, abusive and degrading conduct towards MR frequently happened in the presence of the children, and she gave one example where that happened in the presence of AR, which caused him stress.

36. MR deposed to OR having taken physical possession of the residential property purchased for AR's special needs for his exclusive use, thus preventing the property being used as a home for AR, notwithstanding that it had been modified to accommodate AR's special needs.

37. Consequently, MR and her children were required to continue to live in inappropriate public housing, which often caused AR distress because MR had to use a hoist to get him in and out of his bed, which was a procedure that was not comfortable or appropriate given the inadequate size of AR's bedroom.

38. MR deposed to a number of apprehended violence orders being made against OR, starting from 30 June 2015, that led to OR being found guilty of crimes and punished, including OR being sentenced to one month’s imprisonment on one occasion and four months’ imprisonment on another.

39. MR deposed to OR regularly using drugs, particularly cocaine, and having been arrested by police on a significant number of occasions for serious offences.

40. The present case was, in my view, of the category considered by Palmer J in Re Fenwick; Application of JR Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530 (Re Fenwick) at [171]-[176], where AR lacks testamentary capacity in a manner that has prevented him from ever being able to develop any notion of testamentary disposition. The Court must of necessity make an objective assessment of the likelihood that AR would, if he had been capable of doing so, have made a will in the terms annexed to the Secretary's summons. That is necessary because the Court must be satisfied that the will is one that it is reasonably likely would have been made by AR, if he had been capable of doing so.

41. I was satisfied that, MR having died, and AR having lived for much of his life with his two siblings, it is reasonably likely that AR would have made the will annexed to the summons. I was satisfied that it was not reasonably likely that AR would have considered that it was appropriate or desirable that the whole of his estate be transmitted to his father, OR, in the circumstances that I have described above.

42. It must be accepted, however, that there is a real question as to whether, in all of the circumstances, AR would have totally excluded OR from benefiting under his will, if AR had been capable himself of making such a will. That question has been addressed in an earlier, similar case that I was required to decide urgently in the Duty List, and a subsequent decision in the same matter when Ward CJ in Eq considered the application on a final basis, see A Ltd v J [2017] NSWSC 736 (A Ltd v J) and A Ltd v J (No 2) [2017] NSWSC 896.

43. The primary issue of concern on this application was whether, even in the circumstances of apparent urgency, the Court was entitled to be satisfied that adequate steps had been taken to allow OR to be represented, given that he had a legitimate interest in the application, as a person who has reason to expect to benefit from AR's estate, as is required by s 22(e) of the Succession Act.

44. OR was not notified of the application. He was not served with process. Consequently, he was not given an opportunity to appear.

45. The Court was told that the Secretary had taken steps to give OR notice by trying to find him, including by making enquiries of known members of OR’s family. It was understood that OR was in police custody at a particular police station, but when the representative of the Secretary contacted the police, it was found that OR had been released from custody. The Court did not have specific evidence of these attempts to notify OR of the application, and the position in relation to the evidence of this matter was unsatisfactory.

46. I took the view that what constituted "adequate steps" depended on the circumstances, and thus would be sensitive to the urgency of the application.

47. In my view, it is obvious that the requirement in s 18(3) of the Succession Act that the Court can only make a statutory will if the person in respect of whom the application is made is alive when the order is made can have very undesirable consequences when the application is necessarily truly urgent. It is, perhaps, understandable that the person should be alive when the application is commenced, but it is difficult to see why it is essential that the person should be alive when the order is made. The case of A Ltd v J, which I have mentioned above, gave rise to similar difficulties. Difficulty also may emerge if the Court declines to make a statutory will and the applicant appeals. That may impose an unnecessary degree of urgency on the appeal process: see for example Small v Phillips [2019] NSWCA 222 at [11].

48. Although the requirements set out in s 22 of the Succession Act are mandatory, they are expressed in terms that include what Palmer J in Re Fenwick, at [173], described as “elastic phrase(s)”, such as "reason to believe", "reasonably likely to be", and "adequate". Each of the criteria may be sensitive to the circumstances in which the application is made, which may not necessarily always be directly material to objective testamentary considerations.

49. In the present case, if the Court had refused to deal with the application and AR had died before OR could be found and given proper notice of the application, the opportunity for the Court to apply this beneficial legislation would have been lost. That is in circumstances where I was satisfied that it is highly likely that, objectively, AR would have wanted to bestow a substantial testamentary benefit on his siblings, had he been capable of considering the matter, even though it is less clear that he would have excluded his father completely.

50. Section 18(3) of the Succession Act has the unfortunate practical effect, in apparently truly urgent cases, that, if the Court wrongly makes an order authorising the making of a statutory will, and the person the subject of the order then dies, the error can be corrected on appeal. Absent any earlier will, the person will then die intestate. The opportunity to authorise a will in different terms will be lost. However, if, faced with uncertainties as to whether the mandatory requirements in s 22 of the Succession Act have been satisfied, the Court wrongly declines to make an order, or adjourns the application, and the person then dies before the statutory will can be made, the opportunity is lost for the error to be corrected on appeal.

51. It was in these circumstances, albeit with misgivings, that I was satisfied that the requirement in s 22(e) was satisfied, and further, as required by s 22(c), that it was appropriate for the orders sought by the Secretary to be made.

52. Relevantly, I made the following orders:

3.   Notes that the Court has been informed by counsel for the plaintiff that the defendant, being the father of the young person the subject of the application, has not been served and has not been able to be found since the plaintiff learned within the last 2 days of the immediate risk of death of the young person, notwithstanding efforts to find the defendant and inform him of the proposed application by inquiries with the defendant’s family among other efforts.

4. Pending further order that there be no publication that would identify, or tend to identify, the young person the subject of these proceedings except for the purpose of the proper conduct of these proceedings (this order being made on the grounds specified in s 8(1)(a),(c) and (e) [of] the Court Suppression and Non-Publication Orders Act 2010).

5. Pursuant to s 19 of the Succession Act 2006 (NSW) (the Act) leave be granted to the plaintiff to make an [application] to the Court for an order under s 18 of the Act.

6. Pursuant to s 18 of the Act a will be authorised to be made on behalf of the young person identified in prayer 3(a) of the summons in the form of annexure A to the summons.

7.   Orders that a Registrar be authorised and directed to sign and seal with the seal of the Court pursuant to s 23 of the Act the will referred to in order 6 and dated today’s date.

8.   Orders that these orders may be entered forthwith.

9.   Notes that these orders have been made at 6:30pm on Friday, 20 September 2019 as a matter of extreme urgency given the medical evidence of the prognosis of the young person and in the absence of the defendant.

10.    Orders the plaintiff to take all reasonable steps to cause the summons, the affidavit and these orders to be served on the defendant personally as soon as that can be done.

11.   Grants leave to the defendant to apply in these proceedings for an order setting aside these orders or making any orders in lieu of these orders.

12.   Grants leave to the parties to apply to the Duty Judge by arrangement with the associate to the Duty Judge for the time being.

13.   Stands the proceedings over before the Duty Judge at 10am on Thursday, 26 September 2019.

53. It is plainly important that the Secretary comply with order 10 as soon as possible, in respect of service on OR, so that he can be given the opportunity to bring the matter back before the Court.

54. Not only is OR entitled to that notice, but it is in the interests of the Secretary to provide it, acting on behalf of AR, as the circumstances in which the application was brought before the Court and the orders made give rise to a real risk that the orders may be varied on appeal, which would jeopardise the validity of the will that has been made for AR in conformity with those orders. If the continuation of AR's life permits it, the issue of the making of the statutory will for AR should be revisited by the Court, in circumstances where the mandatory requirements of the relevant sections of the Succession Act can all be more clearly satisfied.

55. As OR was absent from the hearing because he was not given notice because of the urgency, he may have a right to apply under Uniform Civil Procedure Rules 2005 (NSW) rule 36.16(2)(b), or otherwise under rule 36.16(3A) for an order setting aside or varying the orders that have been made: see Ritchie’s Uniform Civil Procedure NSW at [36.16.30] and [36.16.50].

56. Further, it would seem that OR, as AR's father, may be an appropriate person to make any new application that may be necessary, for the purposes of s 22(d) of the Succession Act. Also, if necessary to remove any doubt about the validity of the present will, it may be prudent for the Secretary to renew the Secretary's application in respect of the will that is annexed to the summons, in circumstances where OR has notice of the application and is able to contest it if he wishes to do so.

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Amendments

26 September 2019 - Par 34 changed AR to OR

Par 38 changed AR to Or

16 October 2019 - [28](e) replacing [28](d)

Decision last updated: 16 October 2019