Stone v Braun
[2015] WASCA 103
•28/05/15
STONE -v- BRAUN [2015] WASCA 103
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 103 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:92/2014 | 13 MAY 2015 | |
| Coram: | BUSS JA MAZZA JA BEECH J | 28/05/15 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Appeal upheld Order for retrial before differently constituted court | ||
| B | |||
| PDF Version |
| Parties: | ELISABETH GEORGINA STONE STEPHANIE CLARE BRAUN Australian Executor Trustees Limited as Administrator for the Estate of ANNA MINA STONE ROBINSON PETER JOHN STONE |
Catchwords: | Practice and procedure Self-represented litigant Duties of court Whether court afforded procedural fairness Whether circumstances required court to alert self-represented litigant to distinction between submissions and evidence Succession Family provision Application by adult daughter who was left nothing in mother's will Whole of estate worth more than $3 million shared between son and other daughter Master ordered estate be divided equally between three children Whether error by master |
Legislation: | Family Provision Act 1972 (WA), s 6 |
Case References: | Bennett v Curruthers [2010] WASCA 131 Blore v Lang (1960) 104 CLR 124 Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 Cicek v Estate of the Late Mark Solomon [2014] NSWCA 278 Cooper v Dungan (1976) 50 ALJR 539 Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193; (2014) 313 ALR 383 Falkingham v Hoffmans [2014] WASCA 140; (2014) 46 WAR 510 Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Hamod v The State of New South Wales [2011] NSWCA 375 In the marriage of Johnson (1997) 139 FLR 384 Kay v Archbold [2008] NSWSC 254 Lourey v Legal Profession Complaints Committee [2012] WASCA 112 Maas v O'Neill [2013] WASC 379 Michael v The State of Western Australia [2007] WASCA 100 Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] 29 WAR 273 O'Connell v The State of Western Australia [2012] WASCA 96 Palmer v Dolman [2005] NSWCA 361 R v White [2003] 1 VSCA 174; (2003) 7 VR 442 Singer v Berghouse (1994) 181 CLR 201 SNF (Australia) Pty Ltd v Jones [2008] WASCA 121 Stead v State Government Insurance Office [1986] HCA 54; (1986) 161 CLR 141 Tobin v Dodd [2004] WASCA 288 Tomasevic v Travaglini [2007] VSC 337 Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 Wheat v Wisbey [2013] NSWSC 537 Woolworths Ltd v Commissioner of Police [2013] WASC 413 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : STONE -v- BRAUN [2015] WASCA 103 CORAM : BUSS JA
- MAZZA JA
BEECH J
- Appellant
AND
STEPHANIE CLARE BRAUN
First Respondent
Australian Executor Trustees Limited as Administrator for the Estate of ANNA MINA STONE ROBINSON
Second Respondent
PETER JOHN STONE
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : BRAUN -v- AUSTRALIAN EXECUTOR TRUSTEES LTD [2014] WASC 210
File No : CIV 2591 of 2012
Catchwords:
Practice and procedure - Self-represented litigant - Duties of court - Whether court afforded procedural fairness - Whether circumstances required court to alert self-represented litigant to distinction between submissions and evidence
Succession - Family provision - Application by adult daughter who was left nothing in mother's will - Whole of estate worth more than $3 million shared between son and other daughter - Master ordered estate be divided equally between three children - Whether error by master
Legislation:
Family Provision Act 1972 (WA), s 6
Result:
Appeal upheld
Order for retrial before differently constituted court
Category: B
Representation:
Counsel:
Appellant : Mr B W Ashdown
First Respondent : Mr M Curwood
Second Respondent : M D M Bruns
Third Respondent : No appearance
Solicitors:
Appellant : Avon Legal
First Respondent : McVay Bates & Associates
Second Respondent : Pamela G McMahon
Third Respondent : No appearance
Case(s) referred to in judgment(s):
Bennett v Curruthers [2010] WASCA 131
Blore v Lang (1960) 104 CLR 124
Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403
Cicek v Estate of the Late Mark Solomon [2014] NSWCA 278
Cooper v Dungan (1976) 50 ALJR 539
Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193; (2014) 313 ALR 383
Falkingham v Hoffmans [2014] WASCA 140; (2014) 46 WAR 510
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Hamod v The State of New South Wales [2011] NSWCA 375
In the marriage of Johnson (1997) 139 FLR 384
Kay v Archbold [2008] NSWSC 254
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Maas v O'Neill [2013] WASC 379
Michael v The State of Western Australia [2007] WASCA 100
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] 29 WAR 273
O'Connell v The State of Western Australia [2012] WASCA 96
Palmer v Dolman [2005] NSWCA 361
R v White [2003] 1 VSCA 174; (2003) 7 VR 442
Singer v Berghouse (1994) 181 CLR 201
SNF (Australia) Pty Ltd v Jones [2008] WASCA 121
Stead v State Government Insurance Office [1986] HCA 54; (1986) 161 CLR 141
Tobin v Dodd [2004] WASCA 288
Tomasevic v Travaglini [2007] VSC 337
Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31
Wheat v Wisbey [2013] NSWSC 537
Woolworths Ltd v Commissioner of Police [2013] WASC 413
1 BUSS JA: I agree with Beech J.
2 MAZZA JA: I agree with Beech J.
3 BEECH J:
Introduction
4 The appellant's mother died on 7 February 2010 aged 91. She was survived by her husband and her three children, Peter Stone (then aged 66), Stephanie Braun (then aged 55) who is the first respondent, and Elisabeth Stone (then aged 53) who is the appellant.
5 The mother's estate had a net value at the time of her death of $3,677,493. As at the date of trial, the estate was worth $3,441,384.
6 The mother's will divided her estate equally between two of her children, Mr Stone and Ms Stone, and did not leave anything to Ms Braun.
7 Ms Braun made a claim under s 6 of the Family Provision Act 1972 (WA) (the Act). The master upheld the claim and ordered that the will be varied so as to leave all the estate to be divided equally between the three children.
8 Ms Stone appeals against that decision.
9 In my view, for the reasons that follow, the appeal must be upheld. Regrettably, it seems to me that, in circumstances where Ms Stone was not legally represented at the trial, Ms Stone was not afforded procedural fairness. This is because the circumstances required the master to alert Ms Stone to the distinction between the evidence and submissions, but that did not occur. Consequently, there must an order for a re-trial.
10 Because Ms Stone's central complaints in this appeal are of procedural unfairness, it is appropriate to outline some of the procedural steps in the proceedings prior to the trial.
Status conferences or case management conferences before the registrar
8 November 2012
11 At the first status conference the plaintiff, Ms Braun and the executor (second respondent in the appeal) were represented and Mr and Ms Stone appeared in person.
12 Counsel for Ms Braun said that he applied for an order that the matter go to mediation. Counsel for the executor said she did not object to that course, but suggested that it would be of value if the parties put in some more specific information about their financial circumstances.1
13 The registrar responded by observing that only the plaintiff had to provide financial details and that the defendants had said that they do not intend to make any claim or raise any competing issues in that respect.2 I infer from that that something to that effect had been said by the defendants in correspondence to the court.
14 Counsel for the executor confirmed the correctness of what the registrar had said.3
15 The registrar again observed that unless the second defendants wished to 'make any competing claims, so to speak' in relation to their financial situation, they did not need to file any financial information.4
16 A little later, the registrar said, speaking to Mr Stone and Ms Stone in relation to their financial circumstances, that 'unless you intend to make a competing claim in relation to your own financial circumstances, that may not be relevant to the mediation'.5
17 In referring to competing claims, the registrar was, no doubt, alluding to the aspect of principles relevant to s 6 of the Act by which competing claims on the testator's bounty are relevant to whether adequate provision has been made for a claimant. However, in the circumstances where Mr and Ms Stone were self-represented, the reference to making a competing claim was liable to be misunderstood. A self-represented litigant may have understood this as a reference to a claim by a beneficiary to increase his or her share of the estate.
28 February 2013
18 An evaluation conference occurred on 28 February 2013.
19 By then, the mediation had occurred, and had not resulted in the resolution of the matter. A solicitor remained on the record for Mr Stone, but by then Mr Stone had indicated that he wished to act on his own behalf.6
20 The main subject-matter of the hearing was, naturally, the directions that needed to be made in order that the matter was ready for trial. The plaintiff proposed the filing of affidavits. Ms Stone requested an order for discovery of the plaintiff's financial records. The registrar indicated, and ultimately ruled, that an order for discovery was not appropriate, given the nature of the proceedings. Rather, she said, questions as to any discrepancies and lack of information in the financial information relied on by the plaintiff would be the subject of cross-examination at the trial.7
21 Ms Stone also raised questions in relation to property in England owned by the plaintiff. The registrar stated that if valuations advanced by the plaintiff were not accepted by the defendants, they may need to get their own evidence or appraisals in that respect.8
22 The registrar raised the general desirability of the defendants seeking legal representation, particularly in the context of an estate valued in excess of $3 million.9
23 The plaintiff failed to file her affidavit in accordance with the court's orders.
24 The matter came back before the court on 1 August 2013.
1 August 2013
25 On 1 August 2013, counsel for Ms Braun sought to explain Ms Braun's delay. Without objection from counsel for Ms Braun, the court made a springing order, ordering that unless Ms Braun filed the affidavits on which she relied within 28 days, the action would be dismissed.10
26 Ms Stone again raised the question of the lack of any appraisal or information about Ms Braun's properties in England.11 The registrar said that that could be dealt with after Ms Braun had filed her affidavits.
5 September 2013
27 By this stage, Ms Braun had filed the affidavits on which she relied. At the hearing on 5 September 2013, counsel for Ms Braun pointed that out, mentioning that the evidence filed included valuations of the English properties.12
28 At the request of Ms Stone, the court ordered that the defendants file the affidavits on which they rely by 7 November 2013.13
21 November 2013
29 At the hearing on 21 November 2013, Ms Stone confirmed that she had filed all of the affidavits on which the defendants relied.14
30 Orders were made for Ms Braun to enter the matter for trial by 12 December 2013.
31 The registrar made observations to Ms Stone about the general desirability of obtaining legal representation if possible.15
32 The matter was listed to be tried on 23 April 2014.
Ms Braun's outline of submissions for trial
33 On 16 April 2014, one week before the trial of the proceedings, counsel for Ms Braun filed and served an outline of submissions. The outline, relevantly:
(1) summarised the size and assets of the estate;
(2) summarised the affidavits relied upon by each party. It was stated that no directions had been made by the court as to the cross-examination of deponents;
(3) said that regrettably much of the affidavit material is irrelevant to the issues before the court, attaching a schedule of objections to the affidavits of Mr Stone and Ms Stone;
(4) outlined Ms Braun's personal circumstances and current financial position;
(5) noted that the jurisdictional question of what is adequate financial provision was said to be assessed by reference to the size of the estate, the need and moral claim of the applicant, and the need and moral claim of other persons who have a legitimate claim upon the bounty of the testatrix;16
(6) reiterated that the affidavits filed by Mr Stone and Ms Stone were full of irrelevant material. It was said that neither of them has disclosed in any degree of detail their financial circumstances, including their assets. A footnote to the submissions referred to evidence of Mr Stone in par 2 of his affidavit and to a statement of Ms Stone in par 3.5 of her affidavit that she was financially self-sufficient and had purchased her own home and had paid it off in 2012.17
The hearing before the master
34 The trial of the proceedings occurred on 23 April 2014. The trial occupied just under one hour.
35 Ms Braun was represented by counsel, as was the first defendant, the executor of the will. Counsel for the executor indicated that it took a neutral stance and she was excused from attendance.18
36 In opening Ms Braun's counsel:
(1) referred to the plaintiff's outline of written submissions;
(2) provided a broad overview of the background to the application;
(3) identified the affidavits upon which Ms Braun relied;
(4) stated that the affidavit material filed by all parties contained a lot of information that was irrelevant;19
(5) referred to the fact that in the course of programming the matter for trial no orders had been made for cross-examination of any of the deponents;20
(6) suggested that there were six main categories of the false issues raised in the affidavits of all parties. The first was whether Ms Braun had ever acted as carer for her step-father. The second was evidence by Ms Braun's siblings and others about the deceased's views towards Ms Braun. The third related to the assets of the step-father. The fourth was evidence about the probate application, the informal will and offers of settlement made since then. The fifth category related to Ms Braun sorting through the deceased's belongings after her death. Finally, there was a significant amount of evidence about a joint bank account between Ms Braun and her father;21
(7) suggested that all affidavits should be received on the basis that the master could determine questions of relevance in the course of his reasons;22 and
(8) tendered the affidavits upon which Ms Braun relied. Each affidavit was marked as an exhibit by the master. The master did not invite comment or other input from the defendants.23
37 After counsel for the first defendant, the executor, was excused, the master turned to the defendants. He requested Ms Stone to identify the affidavits on which she relied, each of which was then marked as an exhibit.24 The same was true of Mr Stone.25
38 The master observed to Ms Stone that there had been a series of objections raised by counsel for Ms Braun. The master stated that one way to deal with the objections was to rule on them one at a time, but an alternative and preferable, way would be to deal with the objections if and to the extent necessary if they became relevant in the course of preparing the reasons. Ms Stone stated that she understood what the master had stated and appeared not to object to the proposed course.26
39 The master then invited Ms Stone's submissions which included the following:
(1) she believed Ms Braun's affidavits contained an abundance of false, irrelevant and unsubstantiated claims and allegations;27
(2) she submitted that Ms Braun failed in her own affidavits to provide substantial documents or evidence to support her claims, notably in relation to her finances;28
(3) she stated that there were some discrepancies in Ms Braun's statements;29
(4) she stated that she believed Ms Braun habitually claims and fabricates destitution to acquire sympathy and money from friends;30
(5) in relation to her own financial status, and in response to par 30 of Ms Braun's outline of submissions, she said that her work and income since her mother's death had been severely restricted, due to commitments to probate proceedings, maintenance of the estate, and health care and family care, most specifically of her teenage daughter and her elderly step-father. That was said to have resulted in annual income not exceeding $16,500 per annum, supplemented by small savings, reduced from approximately $10,000. She stated that her daughter and she lived below the poverty line, using second-hand clothes and furniture and farming their own food to assist in providing for their needs;31
(6) she stated that in 2012 she completed payment on the mortgage of a modest home in Hilton and that her only other significant capital assets were a work van valued at $5,000 and a vintage BMW motorcycle valued at $3,000. She said that her daughter was a university student living with her in her family home.32
40 Mr Stone's submissions included the following:
(1) in brief, it was their mother's wish that the estate be divided between Mr Stone and Ms Stone and that they were to look after Ms Braun. He and Ms Stone understood the intention and understood that their mother did not want to see Ms Braun squander away money that she would receive from an inheritance;33
(2) he made a number of submissions about Ms Braun's conduct in contesting the informal will;34
(3) he stated that he lives 200 km from Melbourne and his family has a need to visit there regularly for health reasons.35 He also said that he looked forward to the future education of his son who was 15 and whom he thought would attend university. He referred to increasing property prices in Melbourne. He also stated that his wife only works three days a week and for health reasons needed to retire soon;
(4) he stated that he had not detailed anything about his financial situation, but was quite prepared to do so if the court so required it, but that he was not a wealthy person and had debts.36
41 Ms Braun's counsel then made brief submissions in reply.37
42 Ms Braun's counsel did not say anything about Ms Stone's submissions concerning Ms Stone's financial circumstances. In particular, Ms Braun's counsel did not object to Ms Stone's submissions on the basis that they were not supported by the evidence in her affidavits.
43 The master did not say anything about the fact that Ms Stone's submissions concerning her financial circumstances went beyond what was in her affidavits. The master did not say anything, in the course of the hearing, about the distinction between evidence, in the form of affidavits, and submissions made from the bar table.
The master's reasons
44 The master began by outlining the background facts, before turning to the relevant legal principles.
Legal principles
45 The master applied the principles stated by Pritchard J in Maas v O'Neill38 as follows:
In order to decide whether the proposed settlement will be for Matthew's benefit, and that all relevant facts have been considered, it is necessary to bear in mind the principles governing applications under the Family Provisions Act. Ms Maas' application under that Act is brought pursuant to s 6(1) which permits an application to be made by certain persons (including, relevantly, a child of the deceased living at the date of his or her death) on the basis that the disposition of the deceased's estate effected by their will was not such as to make adequate provision from the estate for the applicant's proper maintenance, support, education or advancement in life. If the provision is inadequate, the Court has the discretion to make 'such provision as the Court thinks fit out of the estate for that purpose'. It is well established that s 6 thus encompasses a two stage process.
The question whether adequate provision was made for an applicant's proper maintenance, support, education or advancement in life involves, in effect, a jurisdictional question. In determining that question, it is necessary to consider an applicant's financial position, and his or her need for, and moral claim to, provision from the estate, the need and moral claims of other persons who have a legitimate claim upon the testator's bounty, and the size of the estate, as at the date of the testator's death. The terms 'maintenance', 'support' and 'advancement' in s 6(1) of the Family Provisions Act encompass not only provision for the supply of the necessaries of life, but also extend to provision over and above a mere sufficiency of means upon which to live, and may extend to provision which would enable a potential beneficiary to improve his or her prospects in life.
In exercising the discretion under s 6(1) of the Family Provisions Act, the question for the Court is what award would be adequate for the 'proper' maintenance, support, education or advancement of the applicant. The term 'proper' prescribes a standard, whereas the term 'adequate' is concerned with the quantum of the award. The propriety of a provision for an applicant is to be assessed by reference to all the circumstances. Determining the quantum of an award which would be adequate for the proper maintenance, support, education and advancement of an applicant is also a relative question, which requires consideration of the nature, extent and character of the estate and the other demands upon it. The exercise of discretion involves a consideration of the facts which exist at the time of the making of the order.
Section 6 of the Family Provisions Act confers a wide discretion on the Court at each stage of the two stage analysis. (footnotes omitted)
Findings and general observations
46 The master made the following findings:
(1) at the time of her mother's death, Ms Braun was 55 and living with her dependent son who was aged 14;39
(2) Ms Braun was separated from her husband and was involved in unresolved divorce proceedings with him;40
(3) she was not in a relationship with any other person;41
(4) she was visiting Perth but is generally a resident of the United Kingdom;42
(5) her only income was a United Kingdom pension;43
(6) she was living off her savings which were less than $5,000;44
(7) Ms Braun had poor health from an adrenal gland malfunction and had previously suffered a heart attack;45
(8) in the United Kingdom her accommodation was a fixed caravan on a caravan site on the coast of mid-Wales;46
(9) her income per fortnight was £144 and her monthly expenses approximately $1,000.47
47 The master made the following observations in relation to the respondents to the application, Ms Stone and Mr Stone:48
At the hearing of this application [Ms Stone] and [Mr Stone] were not represented. The first defendant did appear by counsel but not surprisingly took no part in the hearing. Almost all of the evidence filed by [Ms Stone] and [Mr Stone] was irrelevant to the matters to be considered when determining this application. Instead [Mr Stone] and [Ms Stone] both in their affidavit evidence and in oral submissions attacked the character and integrity of [Ms Braun]. Clearly there is antagonism between [Ms Braun] on the one hand and [Mr Stone] and [Ms Stone] on the other. But the existence of such antagonism is not a relevant consideration in determining this application. As a consequence there was virtually nothing in [Mr Stone] and [Ms Stone's] case which explained their financial position or in any way answered [Ms Braun's] claim.
The jurisdictional question
48 The master concluded that there was no doubt that the mother did not make adequate provision for Ms Braun out of her estate. He stated three factors that led to this conclusion.49 First, the size of the estate was such that it was possible to provide for Ms Braun without depriving the beneficiaries of the estate of a substantial inheritance.
49 The master applied the principles relating to claims by adult children as summarised in Wheat v Wisbey,50 including the following which, the master said, favoured Ms Braun's claim:
(1) where an adult child falls on hard times and where there are assets available, the community might expect a parent to provide a buffer against contingencies;
(2) if the adult child of the testator has an obligation to support others, such as a dependent child, that is a factor in determining what constitutes appropriate provision for the maintenance of the claimant;
(3) there is no need for an applicant adult child to show some special need or special claim;
(4) the adult child's lack of resources to meet demands, particularly of ill-health, which become more likely with advancing years, is a relevant consideration, as is the need for financial security and a fund to protect against the ordinary vicissitudes of life.
50 Secondly, the master stated that five factors show that Ms Braun had a need and a moral claim.51 She had inadequate living arrangements and lack of suitable permanent accommodation. She was separated from her husband and going through divorce proceedings with a dependent child, meaning she had demands upon her and limited resources to meet those demands. She had no superannuation and therefore no provision for retirement. She lacked income. Her age and future employment prospects were against her.
51 The master stated that the evidence filed by Mr Stone and Ms Stone suggested an estrangement between their mother and Ms Braun.52 That does not terminate the obligation of the testator to provide for the claimant or preclude a claimant from being able to satisfy the jurisdictional requirement.53
52 The master stated that it was very difficult to assess the competing claims to the estate. The master said that the only relevant material was provided by Mr Stone in his affidavit of 16 October 2012. The master set out par 2 of that affidavit in the following terms:54
To describe my circumstances should it be of benefit to the court, I am sixty-eight years of age, with a thirteen year old son, Sam, in Year 7 of secondary school, and a wife, Wendy Bouker, fifty-five years old, a primary teacher. I am not in the best of health, having had successful by-pass surgery, a pace-maker, and diabetic. I am still self-employed as a book distributor but are planning for retirement due to its diminishing financial viability, and my health. My wife experiences just reasonable health, being insulin dependent diabetic, and associated ills that go with this. By necessity of health and stress, she now works just three days a week. At present we must both continue to work because of the need to educate my son, who appears to have the intelligence and interest to attend university in five years. This poses some difficulty as it is to many students living in the country (we are 210 km from Melbourne) and we wish to consider re-location to Melbourne before he graduates from school and enters tertiary education. We do not have the finances to do this at present.
53 The master concluded that that evidence indicated Mr Stone had a need for provision, but that he could not be satisfied that there were strong competing claims against the claim of Ms Braun.55 That was evidently the third factor relied on by the master.
54 The master observed that during oral submissions both Mr Stone and Ms Stone appeared to concede that Ms Braun had a claim upon the estate.56 He observed that their position appeared to be that Mr Stone and Ms Stone understood her needs and would make provision for her in some way or another. The master said that although that appeared to involve a concession on the jurisdictional question, the master did not determine the matter on that basis, referring to the fact that they were not legally represented.
The appropriate disposition of the estate
55 The master dealt with the second stage question of the appropriate disposition of the estate in the following way:57
That then leaves the question of the appropriate disposition of the estate. Given the paucity of evidence from [Mr Stone] and [Ms Stone] it is simply not possible to assess their needs. But clearly they should benefit from the estate. It seems to me the proper course is simply to divide the estate between the three siblings. In other words the will of the deceased ought be altered to allow [Ms Braun] to participate in the estate as to a one-third interest. In reaching that conclusion I have taken into account [Ms Braun']s position as at the date of the hearing. Her divorce and property settlement had been finalised. As part of that settlement she received the sum of £135,000. She also received what she describes as 'two derelict homes in Manchester'. As at the date of making that affidavit she had savings of £80,000, the two homes in Manchester and a caravan valued at £3,000. Clearly her financial position had improved since the date of the death of Anna but it could not be said that she was comfortably placed. She had no employment and no prospects of employment and there is no suggestion she has made any provision for superannuation.
Grounds of appeal
56 Ms Stone advances four grounds of appeal.
57 First, she complains that she was denied procedural fairness as a self-represented litigant in the conduct of the trial. In this regard she complains that:
(a) she should have been informed of her right to object to the affidavits relied on by Ms Braun;
(b) she should have been informed of the consequences of not cross-examining Ms Braun on her affidavits;
(c) she should have been informed that if she did not adduce sufficient evidence as to her financial position the court may base its decision on the assumption that she did not have any need for provision from the estate, and that, consequently, she should consider adducing or seeking to adduce further evidence in that respect.
58 Secondly, she alleges the master failed to consider or evaluate the material presented by Ms Stone as a self-represented litigant to ascertain whether Ms Braun's evidence as to her financial position was objected to or disputed, or should be accepted as sufficient to establish a claim.
59 Thirdly, she alleges that the master erred in failing to determine the amount required to provide adequate provision for the proper maintenance, support, education or advancement in life of Ms Braun.
60 Fourthly, she alleges the master erred in failing to give adequate reasons for his evaluation of the amount that constituted adequate provision for the proper maintenance, support, education or advancement in life of Ms Braun and, further, did not give adequate reasons for his conclusion that the estate should be divided equally between Ms Stone, Mr Stone and Ms Braun.
Grounds 1 and 2 - procedural fairness to a self-represented litigant
61 Both grounds 1 and 2 concern the court's duties when a party represents himself or herself.
Self-represented litigants: legal principles
62 The challenges in the role of trial judge are increased when one (or more) of the litigants is not legally represented.58
63 I adopt and apply the observations of Pullin, Newnes and Murphy JJA in Moleirinho v Talbot & Olivier Lawyers Pty Ltd:59
What a judge ought do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case: Abram v Bank of New Zealand [1996] FCA 635; (1996) ATPR 41-507, 31; Tobin v Dodd [2004] WASCA 288 [14]. The boundaries of intervention are flexible but the lodestar is a fair and just trial. It is clear, however, that a judge must not intervene to such an extent that he or she cannot maintain a position of neutrality or as to give an unrepresented litigant a positive advantage over another party. The advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which that litigant will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which the adversarial procedure offers to the unwary and untutored: Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1, 14; Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 [26]-[29].
64 Many cases have recognised the dilemma and delicate balance created by the need to diminish the disadvantages suffered by a self-represented litigant while maintaining the court's neutrality.60
65 Depending on the circumstances, the court may need to take appropriate steps to ensure, so far as possible, that a self-represented litigant has sufficient information about the practice and procedure of the court to mean that there is a fair trial.61 This duty does not extend to advising the self-represented litigant as to how his or her rights should be exercised.62 Further, a duty to provide information in order to attempt to overcome the procedural disadvantages faced by a self-represented litigant is not a duty to run the case for him or her.63
66 The importance of ensuring that a self-represented litigant understands the distinction between evidence and submissions is at the heart of the decision in Downes v Maxwell.64 In that case, the trial judge had repeatedly explained, and emphasised, the distinction between evidence and submissions. Nevertheless, on appeal the majority found that there had been a denial of procedural fairness, because there was a real risk that a comment of the trial judge to the self-represented litigant made just before the time for him to elect whether to give evidence may have misled him to believe that his oral submissions could be relied on as his case.65
67 In some circumstances a judge ruling proposed evidence to be inadmissible may need to explain the ground on which it is inadmissible with sufficient clarity to ensure that a self-represented litigant understands it, and can consequently consider steps that might be taken to remedy the problem.66
68 In communicating with a self-represented litigant, the court must be careful to ensure that things said by the court do not inadvertently mislead the self-represented litigant, including by reinforcing a misapprehension, about the applicable substantive or procedural law, or about the way in which the case is to be conducted. That is illustrated by Moleirinho 67and Downes v Maxwell.68
69 Views may often reasonably differ as to where the line is to be drawn. That is illustrated by the fact that there were dissenting opinions in both Uszok and Downes v Maxwell.
Disposition
70 In my view, for the reasons that follow, the way in which the court responded to Ms Stone's submissions about her financial circumstances meant that she was denied procedural fairness.
71 Ms Braun's written submissions, filed a week before the trial, made it clear that the financial circumstances of Ms Stone and Mr Stone, as well as the financial circumstances of Ms Braun, were relevant to the case. I am not satisfied that that was clear, or was made clear, to Ms Stone before that.
72 At the hearing, Ms Stone made submissions specifically about her own financial situation. She expressly described them as being in response to par 30 of Ms Braun's outline of submissions, in which it had been said that neither she nor her brother had disclosed in any degree of detail their financial circumstances. Ms Stone outlined her financial position as regards both income and assets, saying that her income was not more than $16,500 per year and that her assets were extremely limited.
73 In my view it was, objectively, apparent that Ms Stone did not appreciate that her submissions were not evidence of the facts asserted in them, and could not involve factual assertions beyond what was contained in her evidence. In the language of the passage I have quoted from Moleirinho, that is a trap for the untutored self-represented litigant.
74 Neither the master nor Ms Braun's counsel said anything at the hearing to indicate to Ms Stone that her submissions as to her financial position were not supported by admissible evidence because they were not based on, or went beyond, her affidavits. Ms Braun's counsel did not make any objection that Ms Stone was giving evidence from the bar table. While Ms Stone was making submissions about her financial circumstances, the master did not inform her that those submissions were not supported by evidence. More generally, the master did not, at any stage, say anything about the need for facts to be put forward in the form of evidence, as distinct from by assertion from the bar table. In the course of the trial, the master did and said very little with a view to ensuring that the self-represented defendants understood the process and procedural rules. The only thing of that character said by the master related to how he intended to deal with the plaintiff's objections to the affidavits relied on by Ms Stone and Mr Stone.69
75 The master's reasons do not refer to the matters asserted by Ms Stone in her oral submissions about her financial circumstances. The master's reasons are full of references to the absence of evidence from Mr Stone and Ms Stone about their financial position.70 For example, the master stated that 'there was virtually nothing in [Mr Stone] and [Ms Stone's] case which explained their financial position'.71 In par 15 and 16 the master observed that the only relevant material as to competing claims to the estate was contained in Mr Stone's affidavit, and found that he could not conclude, on the state of the evidence, that there were strong competing claims against Ms Braun's claim. In my view, had the master had regard to Ms Stone's submission that her annual income was no more than $16,500, the master would not have drawn those conclusions. It is implicit in the master's reasoning that he put Ms Stone's oral submissions to one side. It can be safely inferred that he did so on the basis that those submissions were not supported by her evidence.
76 In my respectful opinion, the combination of these circumstances meant that Ms Stone was not afforded procedural fairness. In my view, it was incumbent on the master to inform Ms Stone that her oral submissions about her financial position went well beyond what was in her affidavits, before proceeding to determine the case without regard to her oral submissions.
77 Had Ms Stone been so informed she may well have offered to give evidence of her financial circumstances on oath, or sought to put on an affidavit. Such an application by Ms Stone may or may not have been successful. An application to put on an affidavit would, if granted, have necessitated an adjournment. An application to give the evidence orally, if successful, may have done so. That in turn would have led to inconvenience and delay. None of this detracts from the need to afford procedural fairness to Ms Stone by informing her of what was evidently not apparent to her as a litigant in person - that her submissions on the important subject of her financial circumstances needed to be supported by evidence.
78 On appeal, Ms Braun's counsel submitted that Ms Stone's oral submissions at trial did not go any further than what was contained in her evidence. I do not accept that submission. Ms Stone's oral submissions about her financial position were significantly more detailed than the few bare statements in par 3 of her affidavit of 22 October 2012 and par 3.1 - 3.3 and 3.5 of her affidavit of 2 November 2013. The oral submissions painted a distinctly less rosy picture than emerged from her affidavits. For example, in her oral submissions Ms Stone stated that her annual income did not exceed $16,500 and that she and her daughter have lived below the poverty line and continue to do so. Nothing to that effect was said in her affidavits.
79 As I have said, if the master had drawn Ms Stone's attention to the distinction between submission and evidence, that may or may not have led to Ms Stone being permitted to adduce evidence to the effect of what she had said in submissions. The receipt of such evidence may or may not have affected, and may or may not affect, the ultimate decision as to what provision should be properly made for Ms Braun. That is sufficient to call for a new trial. A denial of procedural fairness will lead to a new trial unless a properly conducted hearing could not possibly have produced a different result72 or, perhaps, could not possibly lead to a different result at a new hearing.73
80 For these reasons, I would uphold ground 1 of the appeal.
81 It is not necessary to deal with Ms Braun's claim that, in other additional respects she was not afforded procedural fairness.
82 Although unnecessary to do so, for the sake of completeness I will briefly explain why I would not uphold grounds 3 and 4 of the appeal.
Ground 3
83 As developed in written and oral submissions, ground 3 essentially complains that:
(1) the second step of the court's task under s 6 of the Act requires the court to determine what provision for the claimant is appropriate for the purpose of making adequate provision from the estate for the proper maintenance, support, education or advancement in life of the claimant; and
(2) the master did not approach the second stage in that way, but rather approached it on the basis that he considered that it was 'just' to divide the estate equally, without coming to that conclusion by reference to what provision was necessary to ensure that the proper maintenance, support, education or advancement in life of Ms Braun.
84 I accept the first proposition, but not the second.
85 The purpose of the legislation is not to ensure there is an overall fair division of an estate.74 There is no doubt that an award of an equal share of the estate simply on the basis that equality is fair would involve error.75 I do not think that is how the master's reasons are to be read.
86 The master applied the principles set out by Pritchard J in Maas v O'Neill.76 That statement of principles makes it crystal clear that the second question involves the court determining what award would be adequate for the proper maintenance, support, education or advancement in life of Ms Braun.
87 It is true, as Ms Stone's counsel emphasised, that in dealing with the second question in par 18 of his reasons, the master did not make any express finding as to what provision was necessary for the proper maintenance, support, education or advancement in life of Ms Braun. It would have been preferable had such a finding been expressed. Nevertheless, the master's reasons must be read as a whole, and in light of the limited evidence that was before him. When that is done, I think such a finding is implicit in his reasons. In explaining his conclusion in par 18, the master made reference to the evidence before him as to Ms Braun's financial circumstances as at the date of the hearing. Earlier in his reasons the master had made detailed findings as to Ms Braun's need and moral claim at the date of her mother's death. Subject to the different dates for assessment, the findings made at the first stage will often be very influential in determining, at the second stage, what order should be made in favour of the claimant.77
88 For these reasons, I would dismiss ground 3.
Ground 4
89 Ground 4 complains that the master gave inadequate reasons in relation to explaining his conclusion that an appropriate award to provide adequate provision for Ms Braun's proper maintenance, support, or advancement in life was a one-third interest in the estate.
90 Reasons for decision need not be lengthy or elaborate.78 The reasons should disclose the intellectual process that led to the decision with sufficient certainty to enable the litigant to know why it is that the result ensued and to ensure that the right of appeal has been secured.79
91 In determining the adequacy of the reasons the reasons must be read as a whole, and, if necessary, considered in the context of the evidence.80 An appellate court may take into account what can legitimately be inferred from the reasons.81 Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's consideration.82
92 In this appeal, in assessing the adequacy of the reasons the character of the court's task in undertaking the second stage must be taken into account. That task has been described as 'instinctive synthesis' or 'intuitive assessment', in respect of which reasons for the appropriate provision need not be fully articulated.83
93 I refer to the observations I made in determining ground 3. The adequacy of the master's reasons must take into account the limited extent of the evidence necessary for him to undertake the task required at the second stage. Given the limited extent of the evidence before him, and reading the master's reasons as a whole, in my opinion the master's reasons disclose with sufficient clarity the reasoning leading to his implicit conclusion that a one-third share in the estate was appropriate to ensure adequate provision for Ms Braun's proper maintenance, support or advancement in life.
94 For these reasons, ground 4 fails.
Conclusion
95 For the reasons I have given, I would uphold ground 1 and order a re-trial before a court differently constituted.
96 I would hear from the parties as to costs.
1 ts 8 November 2012, 2.
2 ts 8 November 2012, 2.
3 ts 8 November 2012, 2.
4 ts 8 November 2012, 2.
5 ts 8 November 2012, 3.
6 ts 28 February 2013, 9 - 10.
7 ts 28 February 2013, 12 - 13.
8 ts 28 February 2013, 13.
9 ts 28 February 2013, 15 - 16.
10 ts 1 August 2013, 23.
11 ts 1 August 2013, 26.
12 ts 5 September 2013, 29.
13 ts 5 September 2013, 31.
14 ts 21 November 2013, 3.
15 ts 21 November 2013, 4.
16 Submissions [16].
17 Submissions [30], footnote 37.
18 ts 23 April 2014, 11.
19 ts 23 April 2014, 3.
20 ts 23 April 2014, 5.
21 ts 23 April 2014, 7 - 8.
22 ts 23 April 2014, 8.
23 ts 23 April 2014, 9 - 10.
24 ts 23 April 2014, 12 - 13.
25 ts 23 April 2014, 13 - 14.
26 ts 23 April 2014, 14.
27 ts 23 April 2014, 14.
28 ts 23 April 2014, 15.
29 ts 23 April 2014, 15.
30 ts 23 April 2014, 15.
31 ts 23 April 2014, 15.
32 ts 23 April 2014, 15.
33 ts 23 April 2014, 17 - 18.
34 ts 23 April 2014, 18 - 19.
35 ts 23 April 2014, 21.
36 ts 23 April 2014, 21 - 22.
37 ts 23 April 2014, 22 - 25.
38Maas v O'Neill [2013] WASC 379 [16] - [19].
39 Trial reasons [8].
40 Trial reasons [8].
41 Trial reasons [8].
42 Trial reasons [8].
43 Trial reasons [9].
44 Trial reasons [9].
45 Trial reasons [9].
46 Trial reasons [9].
47 Trial reasons [9].
48 Trial reasons [10].
49 Trial reasons [11].
50Wheat v Wisbey [2013] NSWSC 537 [128].
51 Trial reasons [13].
52 Trial reasons [14].
53 Referring to Palmer v Dolman [2005] NSWCA 361 [110].
54 Reasons [15].
55 Trial reasons [16].
56 Trial reasons [17].
57 Trial reasons [18].
58Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403, 415 (Mason CJ, Brennan, Deane, Dawson & McHugh JJ); Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 [26] (Jackville, North & Kenny JJ); Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193; (2014) 313 ALR 383 [122] (Beach JA).
59Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (Pullin, Newnes & Murphy JJA).
60 For example, Minogue v Human Rights and Equal Opportunity Commission [29]; Tobin v Dodd [2004] WASCA 288 [14] (EM Heenan J); Tomasevic v Travaglini [2007] VSC 337 [113], [116], [121] (Bell J).
61Hamod v The State of New South Wales [2011] NSWCA 375 [311] (Beazley JA); Bauskis v Liew [2013] NSWCA 297 [67] (Gleeson JA, Beazley P & Barrett JA agreeing); In the marriage of Johnson (1997) 139 FLR 384, 407 (Ellis, Baker & Lindenmayer JJ); in a criminal context see Michael v The State of Western Australia [2007] WASCA 100 [84] (Steytler P, McLure JA & Miller AJA agreeing); O'Connell v The State of Western Australia [2012] WASCA 96 [106] (Mazza JA, Martin CJ & Buss JA agreeing); R v White [2003] 1 VSCA 174; (2003) 7 VR 442, 454 (Chernov JA).
62Bauskis v Liew [69].
63Cicek v Estate of the Late Mark Solomon [2014] NSWCA 278 [130] (Ward JA, Meagher & Barrett JJA agreeing); see also R v White [2003] 7 VR 442, 454.
64Downes v MaxwellRichard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193; (2014) 313 ALR 383 (Osborn, Whelan & Beach JJA).
65Downes v Maxwell [99] - [102] (Osborn JA), [127] (Beach JA).
66Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 [145] - [155] (Beazley JA, Basten JA agreeing); see also Moleirinho [53] - [54].
67Moleirinho [54].
68Downes v Maxwell [101] - [102], [127].
69 ts 23 April 2014, 14.
70 See, for example, trial reasons [10], [15], [16], [18].
71 Trial reasons [10].
72Stead v State Government Insurance Office [1986] HCA 54; (1986) 161 CLR 141, 147 (Mason, Wilson, Brennan, Deane & Dawson JJ).
73Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151, 165 (Lindgren J, Jenkinson J agreeing); Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [112], [123] (Murphy JA, Pullin JA agreeing); Woolworths Ltd v Commissioner of Police [2013] WASC 413 [129] (Edelman J).
74Gorton v Parks (1989) 17 NSWLR 1, 5 - 6 (Bryson J).
75Cooper v Dungan (1976) 50 ALJR 539, 542 (Stephen J); Blore v Lang (1960) 104 CLR 124, 134 - 135, 136 (Fullagar & Menzies JJ).
76Maas v O'Neill [16] - [19].
77Singer v Berghouse (1994) 181 CLR 201, 210 (Mason CJ, Deane and McHugh JJ).
78Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] 29 WAR 273 [27] (Steytler, Templeman & Simmonds JJ).
79Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226, 248 (Owen J); SNF (Australia) Pty Ltd v Jones [2008] WASCA 121 [32] (McLure JA, Pullin & Newnes JJA agreeing).
80Garrett (248); SNF v Jones [32]; Falkingham v Hoffmans [2014] WASCA 140; (2014) 46 WAR 510 [304] (Buss JA).
81Bennett v Curruthers [2010] WASCA 131 [27] - [28] (Mazza J, McLure P & Newnes JA agreeing); Falkingham v Hoffmans [304].
82Falkingham v Hoffmans [87] (Pullin & Murphy JJA),[305] (Buss JA).
83Grey v Harrison [1997] 2 VR 359, 366 - 367 (Callaway JA, Tadgell & Charles JJA agreeing); Kay v Archbold [2008] NSWSC 254 [126] (White J).
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