Shepherd v Cooper - [2019] SASC 138

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
SHEPHERD v COOPER & ANOR
[2019] SASC 138
Judgment of The Honourable Justice Doyle
9 August 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - WHEN APPEAL LIES AND EFFECT OF DEATH OF PARTY
The appellant appeals from a decision of a Magistrate granting judgment in favour of the respondents.
Prior to the hearing of the appeal, the appellant died. Ms Wilkinson brought an application seeking an order that she be substituted as the appellant in the capacity as personal representative of his estate. She seeks a further adjournment of the matter to enable her to pursue her claim for a declaration that she was the appellant’s domestic partner with a view to ultimately being in a position to take over the conduct of the appeal.
Held (per Doyle J):
1. It is not appropriate to further adjourn the hearing of the appeal.
2. The appeal is dismissed.
Supreme Court Rules 1987 (SA) r 31.02; Supreme Court Civil Rules 2006 (SA) r 76; Family Relationships Act 1975 (SA) ss 11A, 11B, referred to.
Fifteenth Eestin Nominees Pty v Rosenberg (2009) 24 VR 155; Sunlight Nominees Pty Ltd v Zotti [2017] SASC 176, considered.

SHEPHERD v COOPER & ANOR
[2019] SASC 138
Magistrates Appeal: Civil

DOYLE J: The appellant (Mr Shepherd) filed an appeal from a decision of a Magistrate granting judgment in favour of the respondents (Mr and Mrs Cooper) in the amount of $53,350 plus interest and costs. Prior to the hearing of the appeal Mr Shepherd died. Ms Wilkinson has brought an application seeking an order that she be substituted as the appellant in the capacity as personal representative of his estate.
Ms Wilkinson is not presently the personal representative of Mr Shepherd’s estate. She has commenced an action in the Magistrates Court seeking a declaration that she was Mr Shepherd’s domestic partner at the date of his death. She contends that if she is successful in obtaining that order she will be in a position to be appointed the personal representative of Mr Shepherd’s estate, or to otherwise take over the conduct of this appeal. She accepts that if she is not successful in obtaining that order then she will not have a basis for taking over the appeal.
There have been several directions hearings in this appeal. Ms Wilkinson seeks a further adjournment of the matter to enable her to pursue her claim for a declaration that she was Mr Shepherd’s domestic partner with a view to ultimately being in a position to take over the conduct of the appeal.
I am not satisfied that it is appropriate to further adjourn the hearing of the appeal. There are several reasons for this. They include the lack of merit in the proposed appeal, the uncertainty about the timing and prospects of success of Ms Wilkinson’s claim for a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shepherd v Cooper

Details

AGLC: Shepherd v Cooper [2019] SASC 138
Case: [2019] SASC 138
Decision Date: 9 August 2019

CaseChat Overview and Summary

In the matter of Shepherd v Cooper, the parties were involved in a dispute regarding the substitution of a deceased party in an appeal to the Supreme Court of South Australia. The appellant, Ms Wilkinson, sought to be substituted as the appellant after the death of Mr Shepherd, who was originally the appellant. The Coopers, who were the respondents in the original proceedings, opposed the substitution and the appeal. The case involved complex issues related to the effect of a party's death on an appeal, the power of the court to substitute a deceased party, and the merits of the proposed appeal.

The primary legal issues before the court were whether the court had the power to substitute a deceased party in an appeal under the Supreme Court Civil Rules 2006 (SA) and whether it was appropriate to further adjourn the proceedings to enable Ms Wilkinson to pursue substitution as the appellant. The court had to consider the relevant rules and case law, as well as the practical implications of allowing the substitution and adjournment, including the financial burden and stress on the respondents.

The court held that the Supreme Court Civil Rules 2006 (SA) did not provide an express power to substitute a deceased party in an appeal, and no inherent power was identified that would allow for such substitution. The court further found that it was not appropriate to further adjourn the proceedings to enable Ms Wilkinson to pursue substitution as the appellant due to the lack of merit in the proposed appeal and the considerable financial burden and stress on the respondents. The court concluded that the appeal should be dismissed, and the application for substitution was denied.

The court's final orders were that the appeal brought by Ms Wilkinson be dismissed and that her application for substitution as the appellant be denied. The respondents were not required to further participate in the proceedings, and the matter was concluded without the substitution of the deceased party.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Both of these applications came on for hearing before me.Evidence in support of the parties’ applications Ms Wilkinson and the Coopers each swore affidavits in support of their respective applications. In her first affidavit, Ms Wilkinson said that she met Mr Shepherd on 10 July 2014 and that they “continued seeing one another until his death on May 12th 2019”. She said that they lived together from September 2014 onwards, save for some short periods in September to October 2016, and February to March 2017. She described their relationship in very general terms. She said they became engaged in July 2017, but then ‘split up’ in December 2018. She said that despite having ‘split up’, they continued to see each other regularly and remained close. She suggested that the difficulties in their relationship related to Mr Shepherd being unwell, both physically and mentally. However, she said that “we knew this would settle and we would reconcile”. Indeed, she said that they were getting “back on track” two weeks before he passed away. They had decided she would move back in. Ms Wilkinson concluded her affidavit by asserting that the outcome of the appeal would affect her financially because she was Mr Shepherd’s domestic partner at the time of his death, and that as such she believed she was entitled to be his personal representative. In her second affidavit, and presumably as a result of reading the affidavits filed by the Coopers (see below), Ms Wilkinson acknowledged that she had made a mistake in saying she met Mr Shepherd on 10 July 2014. She said that the “mistake happened because [Mr Shepherd] just passed away. I was severely depressed. I had to sort out the issue of the funeral of [Mr Shepherd]. I was distracted and not thinking clearly. Now that I have had time to think and clear my head, I am sure we met in July 2016.” Ms Wilkinson also disclosed that she had a claim before the Magistrates Court for a declaration that she and Mr Shepherd were domestic partners. The affidavit did not elaborate upon the nature of, or basis for, her claim, or the status or progress of the proceedings. Mr and Ms Cooper both filed affidavits. They both challenged (and set out the factual basis for doing so, including their knowledge of Mr Shepherd’s living arrangements) the suggestion in Ms Wilkinson’s first affidavit that she was in a relationship with Mr Shepherd from July 2014. They also set out their knowledge as to Mr Shepherd’s assets, which it would appear were limited and essentially worthless. They acknowledged that Mr Shepherd (or his estate) might in the future receive a personal injury compensation payment, but did not have any knowledge of the likelihood of this occurring, let alone the likely amount of any such payment. They did not know whether Ms Wilkinson had sufficient assets to meet any costs order in their favour if they successfully resisted the appeal. The Coopers both described the considerable financial burden upon them that these proceedings and the appeal represented. They have incurred legal costs of approximately $37,000 to the point of obtaining judgment in their favour. They have also incurred fees on the appeal of approximately $6,000. Consideration

Decision

Reasons for decision

As well as this financial prejudice, it is appropriate to take account of the stress and inconvenience to the Coopers associated with these proceedings continuing to hang over their heads for an unknown period of at least some months, and potentially many months. Given the lengths to which they have already been put to obtain the judgment presently in their favour, I consider it undesirable that the Coopers be subjected to this continuing prejudice.Conclusion For the reasons set out above, I am not persuaded that it is appropriate to further adjourn the appeal and Ms Wilkinson’s application for substitution. I will thus make an order dismissing the appeal.

Ratio Decidendi

Legal Principle Established

The Coopers both described the considerable financial burden upon them that these proceedings and the appeal represented. They have incurred legal costs of approximately $37,000 to the point of obtaining judgment in their favour. They have also incurred fees on the appeal of approximately $6,000. Consideration Ms Wilkinson’s application to be substituted as the appellant was expressed as brought under r 31.02 of the Supreme Court Rules 1987 (SA). This rule was expressed in general terms, and appears to have extended to permit the substitution of a person for a deceased party in an appeal. However, as the 1987 Rules are no longer in force, this rule cannot avail Ms Wilkinson. Mr Smart, who appeared for Ms Wilkinson, accepted that there was no express power in the Supreme Court Civil Rules 2006 (SA) to substitute a person as appellant in the case of a death of an appellant. Rule 76 addresses the death of a party to an “action” that has been commenced prior to the person’s death. It provides that the action is not invalidated by the person’s death, and under r 76(3) provides the Court with power to substitute the party’s person representative for the party (irrespective of whether probate or administration has been granted), or to appoint a representative of the estate for the purposes of the action. However, by operation of rules 4 and 28, “action” is defined in terms that expressly exclude an appeal. Mr Smart was not able to identify any clear basis for the asserted power to substitute Ms Wilkinson as the appellant. He ultimately relied upon what he contended was the Court’s general law or inherent power to make such an order, but was not able to direct me to any authority in support of such a power. While he referred to Fifteenth Eestin Nominees Pty v Rosenberg,[9] the order in that case substituting the executor son for his deceased father as respondent to an appeal was made under an express power in the Supreme Court (General Civil Procedure) Rules 2005 (Vic). In the absence of any equivalent rule in the Supreme Court Civil Rules 2006 (SA), this authority is of no assistance to him.[9] Fifteenth Eestin Nominees Pty v Rosenberg (2009) 24 VR 155. Even accepting that the Court does have power to substitute a personal representative as a party to an appeal, I am not persuaded that it would be appropriate for me to further adjourn the present proceedings to enable Ms Wilkinson to pursue that course. As I indicated at the outset of my reasons, there are several reasons for this. Lack of merit The first reason is the lack of merit in the proposed appeal. Having not heard the appeal, it is not appropriate for me at this point to express any concluded view as to the merits of the appeal. However, I have had the benefit of the appellant’s summary of argument and some oral submissions from Mr Smart in relation to the merits of the appeal. The first three grounds all challenge the Magistrate’s conclusion that the parties did not reach a legally binding agreement in July 2015. At the centre of the appellant’s challenge to this conclusion is the submission that the Magistrate erred in reaching such a conclusion when both parties had accepted the existence of such an agreement in their pleadings. In my view, this submission assumes too rigid or strict a role for the pleadings in litigation such as the present. While pleadings are an important consideration in setting the boundaries and framework for the determination of litigated disputes, their precise significance in a particular case depends upon the circumstances, including the manner in which the trial was conducted.