Vessey and Vessey
[2012] FamCA 386
FAMILY COURT OF AUSTRALIA
| VESSEY & VESSEY | [2012] FamCA 386 |
| FAMILY LAW – JURISDICTION - Property proceedings commenced but both parties subsequently die - No jurisdiction to anything other than strike out the applications. |
| Family Law Act 1975 (Cth) Survival of Actions Act 1942 (Vic) s 2(1) (now s 29 of Administration and Probate Act 1958 (Vic)) |
| Fisher & Fisher (No 2) (1986) 161 CLR 438 Kawacki & McInnes & Anor [2007] FamCA 882 Lotter v Salmon Street Ltd [2006] VSC 495 Pellarin & Pellarin [2011] FamCA 983 Whitehouse & Whitehouse [2009] FamCAFC 207 WorkCover Queensland v Amaca Pty Ltd [2010] HCA 34 |
| APPLICANT: | Ms Vesey (Deceased) (“The Wife”) |
| RESPONDENT: | The proponents for the will of Mr K Vesey (“The Husband”) |
| FILE NUMBER: | MLC | 11486 | of | 2010 |
| DATE DELIVERED: | 22 May 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 22 May 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Melilli |
| SOLICITOR FOR THE APPLICANT: | Kenna Teasdale Lawyers |
| COUNSEL FOR THE PROPONENTS FOR PROBATE OF THE WILL OF MR K VESSEY: | Mr Moloney |
| SOLICITOR FOR THE PROPONENTS FOR PROBATE OF THE WILL OF MR K VESSEY: | Ms Katherine Moorhouse-Perks |
Orders
That the application filed 13 December 2010 and the response thereto filed 4 March 2011 are both struck out for want of jurisdiction.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vesey & Vesey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 11486 of 2010
| Ms Vesey (Deceased) (“The Wife”) |
Applicant
And
| The proponents for probate of the will of Mr K Vessey (“The Husband”) |
Respondent
REASONS FOR JUDGMENT
The matter before me concerns the jurisdiction of the Court to make orders relating to the division of property where both the applicant husband and the respondent wife have died subsequent to the proceedings commencing.
In my view, there is no jurisdiction in this Court to make any orders under Part VIII of the Family Law Act 1975 (Cth) (“the Act”). The only order that can be made is for the proceedings to be struck out.
The strike out application was made by the Legal Personal Representatives of the deceased wife even though the wife had been the respondent in the substantive proceedings. The respondents to this strike out application were the proponents for probate of the will of Mr K Vessey the deceased husband.
For the purposes of these proceedings and meaning no disrespect to either of the deceased, I shall refer to them throughout as husband and wife for my convenience.
The parties married in 1962.
The husband was born in 1920 and the wife in 1927. Thus, the marriage was long and the parties were elderly when the proceedings began.
The husband had filed the application for final property orders on 13 December 2010. The wife filed a response on 4 March 2011 seeking a dismissal of the application on the grounds that she and the husband had not separated and that he had not the mental capacity to do what he was doing. To progress her defence, the wife sought and asked for a single expert to be appointed to report on the husband’s medical condition.
Thus, it was always clear that the wife’s position was that the proceedings initiated were void ab initio because the husband lacked legal capacity.
In October 2011 the husband died. Initially, there was a clear indication to the Court that the proceedings were to continue. However, in March 2012 the wife died.
Despite the death of both husband and wife, the proceedings drifted whilst there was argument about proceedings in the Supreme Court. When I listed the matter to ascertain what was happening, it was indicated by counsel for the wife’s legal personal representatives that the jurisdictional argument would be put. The husband’s proposed legal personal representatives asked for time to consider their position which did not become apparent until the day of the hearing.
The position as put by Mr Melilli of counsel for the wife’s estate was succinctly set out in an outline of argument. I generally accept what was put. That position was also accepted by Mr Moloney of counsel for the husband’s estate.
Section 79(8) of the Act provides for the continuation of property proceedings that have already commenced but, where before completion, one of the parties dies. The section provides that “where before property settlement proceedings are completed a party to the marriage dies…” a legal personal representative may continue in place of the deceased party. The second limb of that provision is that the proceedings may continue as long as the Court is of the opinion that it would have made a property order if the deceased party had not died.
Mr Melilli submitted that s 79(8) only applied in the event of the death of one of the parties and as such, the Court had no jurisdiction to hear the matter as there was no longer a live application before the Court. He relied on the Full Court authority of Whitehouse & Whitehouse [2009] FamCAFC 207. While their Honours dealt largely with the issue of accrued jurisdiction, the Court said that s 79(8) does not cover the situation where property proceedings have not been completed and both parties to the marriage have died.
Mr Melilli also referred to Fisher & Fisher (No 2) (1986) 161 CLR 438. Fisher addressed a challenge to the constitutional validity of s 79 (8). While obiter, the High Court considered the meaning of “either of the parties” in s 79(8)(b)(iii) and concluded that the use of the word “either” means “one of two” and that the section relates to proceedings which have not been completed before the death of one of the spouses but not both.
Le Poer Trench J dealt with the same issue in Kawacki & McInnes & Anor [2007] FamCA 882 and concluded that s 79(8) was only applicable where one of the parties had died, not both. A similar position was adopted by Collier J in Pellarin & Pellarin [2011] FamCA 983.
Section 79(8) on its face and in simple form relates to a situation where only one party to the proceedings has died. It specifically refers to “a party to the marriage”, “the deceased party” and “the estate of the deceased party”. The Act is silent on a situation where both parties are deceased. If I turn to the common law, the logic can perhaps be seen as arising from the rule that a personal action dies with the person unless a specific exception is shown.
In Lotter v Salmon Street Ltd [2006] VSC 495 (an asbestos case) Gillard J discussed the maxim of actio personalis moritur cum persona (“a personal action dies with the person”) and its application. He concluded that the rule had always been subject to exceptions, both at common law and in statute. (See also WorkCover Queensland v Amaca Pty Ltd [2010] HCA 34). The Survival of Actions Act 1942 (Vic) s 2(1) (now s 29 of Administration and Probate Act 1958 (Vic)) provides that on the death of a person all causes of action subsisting against or vested in that person will survive for the benefit of that person’s estate. Some personal causes of action were expressly excluded from this including defamation claims. The section allowed actions existing at the time of death to remain alive however it would not preserve actions related to acquiring or disposing of property at death. Thus, the common law maxim has been largely abrogated by statute and survives in limited circumstances.
The power for this Court to make property orders is found in s 39 of the Family Law Act which in turn refers to matrimonial causes. A matrimonial cause includes “proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them” (s 4). At the point where both parties have died there is no longer a marriage (nor any parties to it) and absent an express statutory exception such as s 79(8), the personal cause of action to alter property interests between the parties dies with the death of the second spouse.
Absent any specific legislative provision, I am satisfied there is no jurisdiction for this Court to divide the property of persons both of whom are deceased. The application and response are struck out for want of jurisdiction.
I certify that the preceding Nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 May 2012.
Associate:
Date: 23 May 2012
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