Thompson v Cyati
[2024] QDC 11
•12 February 2024 (ex tempore)
DISTRICT COURT OF QUEENSLAND
CITATION:
Thompson v Cyati [2024] QDC 11
PARTIES:
EMMA NARELLE THOMPSON
Plaintiff
v
JULENE FRANCES CYATI as EXECUTOR OF THE ESTATE OF FRANCIS THOMPSON, DECEASED
Defendant
FILE NO/S:
1202 of 2017
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane District Court
DELIVERED ON:
12 February 2024 (ex tempore)
DELIVERED AT:
Brisbane District Court
HEARING DATE:
12 February 2024
JUDGES:
Porter DCJ KC
ORDER:
1. The Respondent disclose to the applicant the bank statements for the estate account by email to the email address the Applicant identified by 4pm on Wednesday 14 February 2024.
2. Parties to the proceeding be given leave to inspect, and subject to the conditions of the registry, copy documents produced in response to the subpoenas returnable 12 February 2024.
3. The application is dismissed.
4. Costs of the application are the Respondent’s costs in the proceedings.
CATCHWORDS:
PRACTICE AND PROCEDURE – State and territory courts – Applications – Adjournment of trial date – Litigant in person – Where the plaintiff was self-represented – Where the plaintiff cavilled with the validity of the will of the deceased – Where the plaintiff makes complaint of incomplete disclosure of the assets and liabilities of the estate – Where the plaintiff sought adjournment to brief legal representation – Where the plaintiff sought adjournment due to unavailability – Whether the trial should be adjourned.
COUNSEL:
The Applicant appeared in person
A G Rae for the Respondent
SOLICITORS:
Bridge Brideaux Porta Lawyers for the Respondent
Procedural history
This is an application by the applicant in a family provision application, Ms Emma Thompson, to adjourn the trial dates of this matter which are listed for, presently, the 13th to the 15th of March 2024. The proceedings have a long history. They were commenced on 5 April 2017 seeking adequate provision for the applicant from the estate of her deceased father, Francis Thompson.
I have avoided digging into reasons on either side for the delay. What is unquestionable is that by 2020, the proceedings had not reached trial despite interlocutory applications of various kinds. Ms Thompson became bankrupt in January 2021. Around that time, interlocutory applications were brought seeking various orders. Ms Thompson was self‑represented. The applications that were before his Honour were orders by Ms Thompson seeking fuller details of the financial position of the estate and by the respondent executor for a declaration the proceeding had been dismissed pursuant to a guillotine order made by Koppenol DCJ on 19 July 2019. The applications came on for hearing before Judge Barlow of this Court. In that context, the question arose as to the effect of Ms Thompson’s bankruptcy on the proceedings.
Whatever the explanation, the proceedings were already quite old (given the nature of the matter) when that matter came before Judge Barlow in January 2021. His Honour did not determine those applications in substance because, after a review of the authorities, his Honour reached the conclusion that the effect of the bankruptcy was that the family provision application was stayed until Ms Thompson ceased to be bankrupt, but that as at the date the matter was before his Honour anyway, the interest Ms Thompson had in her application for further provision was not an interest which was part of her estate which vested in the trustee. One might think it is something that should specifically be addressed by the Bankruptcy Act 1966 (Cth). But in any event, that was his Honour’s order, and it was not appealed.
The proceedings then were stayed, according to his Honour’s order, until I infer, Ms Thompson’s bankruptcy came to an end. On the 13 July 2023, Ms Thompson brought an application the substance of which was to get the proceedings going again after her discharge from bankruptcy and for information about the assets of the estate, including distributions.
That matter came before Judge Gardiner on 19 July 2023. He granted leave to proceed. There seemed to be some directions, which are not attached to his Honour’s order, for the progress of the matter. Thereafter, there has been voluminous material filed by both sides in the proceedings. Most relevantly, an affidavit by the executor, dated 28 August 2023, which set out the assets and liabilities of the estate at the date of death and at the date of that affidavit.
The matter next came before Judge Barlow of this Court on 18 December 2023. The principal application before him on that date was that the signature of the applicant to the request for a trial date be dispensed with and the matter be listed for trial. Several matters were raised by Ms Thompson, who was at that stage also acting for herself, as to why the matter was not ready for trial or as to shortcomings in the applicant’s material. The matters she raised included an incomplete statement of assets and liabilities, insufficient disclosure of bank statements and other related matters, evidence of the capacity of the deceased when he signed the will, evidence about issues about distribution of assets from the estate, and a couple of other matters.
[Prior to the hearing before his Honour, a mediation was held. That occurred on 20 September 2023. That mediation was unsuccessful. It was the failure of the mediation which undoubtedly prompted the respondent to seek the matter to be set down for trial.]
The matter came before his Honour on 18 December 2023. Extensive material was filed in respect of several matters raised by Ms Thompson. In particular, in respect of bank statements. His Honour ordered that the matter be listed for trial for three days, commencing 13 March 2024. His Honour ordered an updated affidavit on assets in the estate by 30 January 2024 and, subject to List Manager’s confirmation, any subpoenas and any pre‑trial applications be made returnable before me today. It required any subpoenas or pre‑trial applications to be served by 2 February 2024.
Ms Thompson appeared for herself at that application, but soon after retained Mr Stevenson of Armstrong Kutz Lawyers of Bulimba who filed a Notice of Appointment on 21 December 2023. Only two requests for subpoenas were filed, both by the respondent, both on the terms of his Honour’s order. One was directed to Westpac, and the other to Suncorp. They were both subpoenas to produce documents. Although they were returnable today, I infer they were produced well before today to the Registrar, and I give leave to both parties to inspect such documents and, on the conditions imposed by the registry, to obtain copies thereof to the extent documents were produced.
Nothing was filed by the applicant until a Notice of Acting in Person on 7 February 2024, five days ago, which was dated 6 February 2024. Ms Thompson, again acting for herself, filed an application on 7 February 2024, outside the time specified by his Honour’s orders which had, at that point, stood for some weeks. The application was accepted by the registry and made returnable before me today.
By that application, Ms Thompson sought the trial to be adjourned because, at least on her application, she had not been served with the respondent’s affidavit as ordered by Judge Barlow, and the respondent had not complied with paragraph 11 of Practice Direction 8 of 2001. Material was filed by the respondent opposing the application, and further affidavits were filed by Ms Thompson along with submissions from both parties.
It is fair to say that the matters raised in submissions and in oral argument by Ms Thompson in support of her application were wide ranging and went well beyond the evidence filed. Despite that, I listen carefully to each of the points, especially given that she is once again self‑represented, to decide whether, overall, it was in the interest of justice for the trial to proceed at its current dates.
Jurisdiction of grant of probate of will
First, Ms Thompson cavilled with the validity of the 2013 will, which is the will by reference to which section 41(1) of the Succession Act 1981 (Qld) is going to be applied at the trial. That will is the object of a grant of probate. That grant of probate was made many years ago. It has never been challenged, although complaints about the validity of that will have been raised by Ms Thompson in submissions going back some time. But it remains the fact that the grant of probate has never been challenged.
This Court does not have jurisdiction (except in very rare circumstances), to call into question an order of the Supreme Court granting probate of a will, even if it is common form probate. That is one reason why that is not a basis for an adjournment. Another is that the 2013 will has stood unchallenged as the last will for many, many years and many actions have been taken in respect of it. One would wonder about the prospects of success on such an application to recall a probate being brought only now.
However, my only interest in that is whether it is a basis for an adjournment, and for the reasons I have given, it is not.
Incomplete disclosure of assets
The second complaint that Ms Thompson broadly raises is the incomplete disclosure of the assets of the estate. There were several components to this. I spent some time trying, with precision, to identify the points that she truly presses. It seemed to fall into these categories.
A further piece of real property?
The first was real property in the estate. From time to time there have been some very large numbers mentioned in material about the value of real properties in the estate. Requested by me to articulate exactly the basis for the proposition of going behind the executor’s affidavit of the assets in the estate in that perspective, Ms Thompson took me to a letter of advice from Robinson Locke Solicitors which suggested that that a particular property, 18 Daly Street, was an asset of the estate. To the extent there is evidence before me of that, that evidence is in an affidavit of Ms Thompson filed in the proceedings. It seems to indicate that that property was property of a discretionary trust of which Ms Thompson’s father was the trustee. There is advice from Robinson Locke that in the circumstances of that particular trust and that particular property, that property was part of the estate. That struck me as an improbable.
However, I have not looked into the matter in detail. They might indeed be right. It is not for me to decide that. What is for me to decide is whether it is an issue that should justify an adjournment, and it does not. The basis upon which it is said that the house is part of the estate seems to be sufficiently raised. The legal argument about it has already been articulated. And there is also, I am told by Ms Thompson, evidence of the price obtained for that particular property at auction at a time which, in the absence of other evidence, could relevantly be relied upon to infer its value at the date of death. It does not seem to me, bearing in mind the long period this proceeding has been on foot, that that was a reason to adjourn the trial. To the extent there is anything in these matters – and I must say I have my doubts based on what I have read – they are adequately raised on material that is before the Court and, indeed, the submissions have already been developed.
Distributions after notice of claim
The second issue that arose in respect of the assets of the estate is whether distributions were made in the estate after notice of Ms Thompson’s claim was received by the executor. The executor swears that distributions were made. She identifies the value of those distributions, which were relatively significant, in affidavit material. She explains the basis upon which she made them. Her evidence is that they were made on the basis that it was presumed that the guillotine order had taken effect and the application had been dismissed. I do not prejudge whether her evidence should be accepted in that regard, but if it is correct, it is yet another example of why guillotine orders can sometimes create more trouble than they are designed to resolve.
Importantly, though, the executor has gone on oath about that, and I cannot see any proper reason to order disclosure with a view to finding other distributions that might have been made. I was not persuaded there was a sufficient basis to do that, bearing in mind, of course, that disclosure is by leave, not by right, in these applications for the very good reason that applicants, and sometimes executors if they are not professional executors, sometimes are disproportionate in their approach to collateral and marginal issues. In any event, I spent some time looking at the material, and I am unpersuaded there is a sufficient basis to delay the trial to permit further inchoate investigations of that question.
Bank accounts
The next point that was raised in respect of the assets and liabilities of the estate related to bank accounts. The estate has an estate bank account. From what I can see on the material, most of the statements have already been provided in the affidavit of Ms Woolcock, solicitor for the Respondent. In any event, I have made a direction with the agreement, if not the consent, of the executor’s representatives that they provide a full set of statements for the estate account.
Ms Thompson harbours concerns about the fate of balances in other bank accounts. In her affidavit sworn on 12 December 2023 filed in support of her application before Judge Barlow, she was seeking the disclosure of further bank statements for a number of identified accounts. I note that they are accounts that are shown in the estate account. The estate account statements were provided during the mediation and were covered without prejudice privilege, although they were subsequently attached to an affidavit in any event, so nothing turns on that.
I do not say this critically of Ms Thompson, but Ms Thompson led evidence of offers and other conduct at or after the mediation which would plainly be covered by without prejudice privilege. Nothing turns on the fact they have been disclosed to me because I am not deciding the trial, as things turn out.
Going back to the bank statements, I examined the bank statements and with Ms Thompson’s helpful guidance was able to track them back to early provisions of information from the executor about the bank statements of the deceased at the date of death. Except for one Credit Union account, the information is all broadly consistent, and it can be seen from the 23 August 2023 affidavit of the executor that it is the balances in these accounts that she says were the balances held at the date of death. The information is so close to consistent that no suggestion that arises to my mind that a forensic investigation of the balances of those accounts is called for. As I have said, disclosure is by leave, not by right, and if I had thought there was a reasonable basis to start investigating that, I would have made the order. But looking at the whole of the material, I am not so satisfied.
Missing cash?
Ms Thompson raised some further matters as to the value of the estate. She alleged that there was cash or would have been cash kept by her father, presumably at his house. She said there was evidence that he tended to do that from a police report. There is nothing that can be achieved, however, from making further orders about that. It is self‑evident from the executor’s sworn material that she received no such cash into the estate. There is no objective evidence that there was any that can be subject of cross‑examination, although care would have to be taken, even for a litigant in person asking questions about it, not to suggest dishonesty where there was not a proper foundation for it. A Judge will stop anybody, litigant in person or barrister, from doing that.
Conclusion on estate assets
Broadly, on the question of the assets in the estate, it seems to me that there is sufficient evidence which will either permit Ms Thompson to ask the executor about particular issues, either in the bank statements or in respect of the Daly Street property, or in respect of distributions in cross‑examination at the trial. Although I should say, in respect of the Daly Street property, I cannot see why there is to be any cross‑examination about that. It is just going to be a question of law based on the application of the Succession Act 1981 (Qld) to the terms of the trust, assuming, of course, that Daly Street was a trust asset.
I think it is fair to say that, broadly, the issue in dispute in this trial, at least that has any complexity at all, is going to be what assets are in the estate and what has become of them. As I have said, there is plenty of material and basis for Ms Thompson to examine those issues at the trial. I am not persuaded any of them are such as to justify further orders for disclosure, and it therefore follows that I would not adjourn the trial to investigate those matters.
Other matters
The seminar
Two other matters were raised as to timing. The first is that Ms Thompson informs me from the bar table that she has been accepted to do a PhD program broadly in law and body corporate issues and that she has passed her one‑year review and that she has a seminar the days of the trial. Ms Thompson was aware of it and did raise it before his Honour, though she was not certain of the dates because she said she did not have her calendar that day, but his Honour, nonetheless, listed the trial on the 13 March 2024. The importance of matters proceeding efficiently is heightened where trial dates are set, as has been highlighted in other Courts. Trial dates are always inconvenient for somebody. Given that the trial dates have stood for so long and that the matter was a matter that was raised on the last occasion when the dates were set, I do not accept that as a reason to further adjourn the trial.
Legal representation
Ms Thompson also sought a short adjournment for further time just to prepare for the trial. This leads me to another substantive topic, which is legal representation, which came up earlier in the argument that I have now just brought it to mind. Ms Thompson has been self‑represented for a good deal of the history of this litigation. Ms Thompson has, from time to time, been represented in these proceedings and has also conducted a good deal of it herself. As I said, she obtained representation about three days after Judge Barlow’s order. That representation came to an end in circumstances that are unclear. To be fair, Ms Thompson tells me from the bar table that she does not understand why it occurred, but that it happened in a challenging manner. What is relevant for this application is that a Notice of Acting in Person was filed on 7 February 2024, along with the application to adjourn the trial. Ms Thompson has recited in her outline that she has made efforts to obtain further legal representation, and she listed a dozen or so firms there that she had contacted. She said that part of the range of reasons given for those firms not acting is that the trial was so close.
I should say, with respect, that I was not persuaded that even if the trial was adjourned for three or four weeks, that Ms Thompson would have a real prospect of obtaining representation. She told me from the bar table that some lawyers had indicated that they might represent her if given more time. But the difference between that and signing a retainer agreement and being willing to act is another matter. There is a big gap there. There is a good deal of material to get across. In any event, even though I suspect a good deal of it is not of great relevance to the resolution of the proceedings, in my view, it would really require a substantial adjournment if another lawyer was to be briefed. And in fact, if that was done a few weeks, two weeks, three weeks, four weeks from now, one would expect there would then be another application by those lawyers so they could be ready for the trial. Anyway, in all the circumstances of this case, I am unpersuaded that a reasonable adjournment, by which I mean three or four weeks, would change the situation for representation.
Time for Ms Thompson to prepare
Ms Thompson said that she needs more time to prepare if she is to run the trial herself. She put before me what appeared to be an authentic booking for 10 days between now and the trial for travel in another country and indicated that she has another two‑day matter, a trial of some kind, in the Magistrates Court. That was perhaps the most persuasive matter that was put before me for adjourning the matter for a short period. The earliest date I could get was 22 April 2024, and that was difficult, though not impossible, for the executor, and difficult, though not impossible, for her solicitor. That is the earliest date I could get when Ms Rae was available. Although, ordinarily, convenience of counsel is not something I put a great deal of weight on, I would not make someone find new counsel in a case with this history. The difficulty with that week is there are already reserve matters in that week, and I could not guarantee a trial in that week. There is not really a convenient date within a reasonable time of the current trial date.
The other matter that I consider is that Ms Thompson clearly knows this material quite well. She was able to argue her application about the history of the bank accounts effectively. This is not a particularly complex trial. Family provision cases, although they can be, are not usually complex. The real issue in this case is what the estate is. That can be examined and, in fact, an agenda for cross‑examination has been developed in the course of exchanges between myself and Ms Thompson today.
The other issue, really, that looms in this case is the financial position and health and claims of the executor, who is her sister and the principal beneficiary, as against Ms Thompson’s. Ms Thompson has just recently been discharged from bankruptcy. One might not have thought it will be a particularly contentious question about that, although there may be issues that come up about previous advances, and so on, or previous gifts. But overall, it does not strike me as a case of great complexity and, as I said, Ms Thompson has a pretty good grasp at least on some of the key issues on the estate.
This matter is a 2017 matter. It does not involve a particularly large estate or a particularly large amount of money. Already a great deal of money has been spent on these proceedings and having considered very carefully each of the matters raised, in the circumstances of the history of the matter, I am unpersuaded that the trial should be adjourned. I therefore dismiss the application.
0
0
0