Talent v Official Trustee in Bankruptcy (No 5)
[2020] ACTSC 64
•26 March 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Talent v Official Trustee in Bankruptcy & Anor (No 5) |
Citation: | [2020] ACTSC 64 |
Hearing Date: | 26 March 2020 |
DecisionDate: | 26 March 2020 |
Before: | Elkaim J |
Decision: | (a) The hearing listing for 30 March 2020 is vacated. (b) The matter is adjourned to 9:30am on 21 May 2020 for directions before Elkaim J with liberty to both parties to restore on 48 hours’ notice. (c) No order as to costs of the Application in Proceeding dated 24 March 2020 is made. |
Catchwords: | SUCCESSION – FAMILY PROVISION AND MAINTENANCE – Application in proceeding – application to vacate final hearing date – outbreak of infectious disease – ill-health of various parties – ability of proceedings to be conducted remotely – consideration of any prejudice arising from delay |
Legislation Cited: | Family Provision Act 1969 (ACT) |
Cases Cited: | Innes v Commonwealth of Australia [2017] ACTSC 44 |
Parties: | John Talent (Applicant) Nadia Talent as executor of the estate of the late Joan Talent (Respondent) |
Representation: | Counsel T Crispin (Applicant) L Donohoe SC (Respondent) |
| Solicitors Ray Swift Moutrage & Associates (Applicant) Gil-Jones Barker Solicitors (Respondent) | |
File Number: | SC 414 of 2019; SC 557 of 2019 |
ELKAIM J:
Earlier today I heard an adjournment application by the plaintiff in these proceedings. I granted the application and informed the parties I would provide my reasons later today. These are my reasons.
On 22 August 2019 the applicant filed an Originating Application seeking orders relating to a property in which he resides and, more generally, to his intention to make a claim pursuant to the Family Provision Act 1969 (ACT). The estate in question is that of the late Ms Joan Talent.
The estate of Ms Talent is essentially constituted by the house in which the applicant resides. Pursuant to Ms Talent’s will, the house is to be sold and the proceeds are to be distributed to the second defendant, who is the executor of her estate and the respondent to this application.
The hearing of the proceedings is due to commence in this court on 30 March 2020, with an estimate of three days. The applicant now does not wish to proceed with the hearing.
By an Application in Proceeding dated 24 March 2020 the applicant has sought an adjournment. The application is opposed by the respondent.
The reason behind the application is that the applicant suffers from leukaemia so that his medical condition puts him at greater risk should he be exposed to the COVID-19 virus. In support of his position he relies on a letter from his haematology treaters, who say that they “strongly support John self-isolating until further notice”.
The written submissions filed on behalf of the applicant add some other reasons which might be described as unusual. Firstly, it is said that the applicant’s principal solicitor is 59 years of age and suffers from asthma. Her assistant solicitor, I am told, is 56 years of age. Apparently of equal significance is the statement that “Counsel for the Plaintiff is obese and suffers from asthma”.
I assume these descriptions of the personal attributes of the applicant’s legal team are said to be relevant because they suggest that the team may be more susceptible to harsher consequences should they contract the virus.
Senior counsel for the respondent, in her written submissions, has pointed out that she is also susceptible to severe consequences from the virus. She adds that she has been told by her doctors that she should not travel by air. She resides in Queensland. Accordingly, the case, if it proceeded, would have been conducted by her junior.
In written Submissions in Reply counsel for the applicant states, at [4], “However, it does make it apparent that Senior Counsel is inviting practitioners to take health risks she is not prepared to take herself”. I regard this comment as gratuitous and unnecessary. As I said in Innes v Commonwealth of Australia [2017] ACTSC 44, at [42]:
I recognise that parties are entitled to put their cases forward ‘stridently’ however language of the type I have identified neither advances a party’s case nor provides any assistance to the Court.
The reason that the respondent does not agree to the adjournment is because she is anxious to carry out the terms of the will and to sell the property. She points out that the case can be conducted with the use of video link and telephone connections so that the applicant and perhaps even the lawyers, will not be required to come to the actual courtroom. They will therefore not necessarily be exposed, to any greater degree, to the contraction of the virus.
In support of her position the respondent has provided a rental valuation of the property, as at 9 March 2020, stating that the “accumulated value of the fair market rental of the property” is $236,540. The valuation was said to be illustrative of the benefit of the property to the applicant (and the corresponding loss to the respondent).
I am sympathetic to the position of both sides. It is correct that a good deal of the case can be conducted from a remote location. It is also appropriate that effect be given to the deceased’s will in a timely fashion.
On the other hand, litigants have a right to appear in court to not only give evidence but also to observe the running of their case. This will involve providing instructions, sometimes very promptly. There is no doubt that many procedures within a litigated case can be effectively conducted through remote forms of communication. However, I think there can be an important distinction with a final hearing.
Further, while a hearing which takes place next week will no doubt, if not successful on the applicant’s part, result in the residence being sold, one wonders what advantage that will be to the respondent in the current climate in which property values are likely to be substantially reduced. If the property were to be sold before the current crisis runs its course, I doubt very much of its true value will be obtained.
I also think I can take into account that if the property is sold the applicant will necessarily have to leave his residence. Therefore, he will be required to participate in a good deal of movement that will be associated with finding a new residence. The added risk of exposure to the virus may well have a particularly tragic result.
We are living in an unprecedented and unpredictable atmosphere. The potential consequences of me refusing the adjournment, in my view, outweigh any prejudice arising from the delayed sale of the property. Fairly, senior counsel for the applicant said she could not identify any specific prejudice (other than general delay) that would arise from the adjournment. I note my decision is made without reference to the personal attributes of the plaintiff’s legal team.
The orders of the Court are:
(d)The hearing listing for 30 March 2020 is vacated.
(e)The matter is adjourned to 9:30am on 21 May 2020 for directions before Elkaim J with liberty to both parties to restore on 48 hours’ notice.
(f)No order as to costs of the Application in Proceeding dated 24 March 2020 is made.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for judgment of his Honour Justice Elkaim. Associate: Date: 26 March 2020 |