Wiemer, Elizabeth v Tasmanian Trustees Limited

[1998] TASSC 70

70/1998

PARTIES:  WIEMER, Elizabeth
  v
  TASMANIAN TRUSTEES LIMITED

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M352/1997
DELIVERED:  17 June 1998
HEARING DATE/S:  19 May 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Trial and evidence - Application for exemption from attending for cross-examination on application to extend time - Applicant resident in Germany - Cross-examination necessary in the interests of justice - Application refused.

Rules of the Supreme Court, O41, r34.
Aust Dig Procedure [278]

REPRESENTATION:

Counsel:
           Applicant:  A J Abbott
           Respondent:  N R Readett
Solicitors:
           Applicant:  Hand Ogilvie & Breheny
           Respondent:  Clerk Walker & Stops

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  70/1998
Number of pages:  3

Serial No 70/1998
File No M 352/1997

ELIZABETH WIEMER v
TASMANIAN TRUSTEES LIMITED

REASONS FOR JUDGMENT  COX CJ

17 June 1998

The applicant, on 9 December 1997, filed an originating application seeking that provision be made towards her maintenance and support out of the estate of the late Robert (Horst) Bertram who died on 22 February 1997 and probate of whose will was granted to the respondent on 26 May 1997.  As the summons was not taken out within three months of the grant of probate, she filed an application to extend the time limited for the taking out of the summons pursuant to the Testator's Family Maintenance Act 1912, s11. In support of that application she filed an affidavit sworn at Rosny in Tasmania on 17 February 1998. The respondent gave notice that it would require her attendance for cross-examination thereon but as she is a resident of Berlin in Germany, she has now made application pursuant to Rules of the Supreme Court O41, r34 that she be granted an exemption from attending for cross-examination at the hearing of the application to extend time in this matter.  That is the application now before me.

Order 41, r34(2) and (3) provide:

"(2)     A party who has been served with a notice under sub-rule (1) may apply to the Court or a judge for an order exempting the deponent named in the notice from attending for cross-examination.

(3)      The Court or a judge may make an order under sub-rule (2) exempting a deponent from attending for cross-examination if it or he is satisfied that the deponent's attendance is not necessary in the interests of justice, having regard to the circumstances of the case, including the subject-matter of the cause or matter and the cost of procuring the attendance of the deponent."

The substance of the affidavit upon which the applicant wishes to rely on the application to extend time and in respect of which she now seeks exemption from cross-examination is that she and the deceased lived together in a de facto relationship in Tasmania and Germany for seventeen years prior to his death, living at 12 Balmoral Street when in Hobart from 1987.  The deceased had told her that the house was a gift from him in gratitude for her "love, faithfulness and closeness and in return for all the years when I had lent him money".  In November 1993, he gave her some title deeds to the house.  While living in Germany in 1995, the deceased underwent an operation and returned to Australia in January 1996.  The applicant could not accompany him at that time because of a bad knee injury and went to Frankfurt on 1 September 1996 to collect him on his return to Germany.  However, he advised her prior to his anticipated arrival that he was not well enough to travel and her decision on learning this fact to travel to him in Hobart was frustrated by a fall on 5 September 1996 in which she broke her hip.  Treatment disabled her from travelling until early December 1996, when she left Germany for Hobart.  Her condition was such that she required the use of crutches.  She was at his side at the time of his death in February 1997 and regarded him as her husband.  According to the probate documents on the court record, the estate, the gross value of which was sworn at $1,475,529, was devised and bequeathed to his three daughters.  The property at 12 Balmoral Street is specifically devised, together with other properties, to one of the daughters.  The will was executed on 24 December 1990.

In two affidavits upon which he was cross-examined, the applicant's solicitor, Mr Breheny, deposed that she is presently residing in Germany and will not be returning to Tasmania until late 1998 or early 1999.  For the last ten years she has been in Tasmania each year over Christmas and the summer period, residing during the rest of the year in Berlin.  She is in good health, but her broken hip makes walking difficult and necessitates the use of a walking stick.  She is not in affluent circumstances and is not able easily to bear the cost of coming to Tasmania for a court hearing before the end of 1998 or early 1999.  Mr Breheny asserts that to require her to attend in Tasmania for the hearing of this matter before the end of 1998 or early 1999 will impose financial and physical hardship upon the applicant.  The cost of an economy flight return trip Berlin to Hobart in the month of June 1998 would be between $1,939 and $2,275.  In view of Mr Breheny's statement that the applicant enjoys good health but for her hip problem, there is no justification for a finding that the trip will impose any unacceptable physical harm.

In a further affidavit by the applicant read on the application for exemption, she deposed that she is 71 years old, that following the deceased's death on 22 February 1997, she consulted a solicitor on 14 March 1997, but returned to Germany on 17 March 1997, unaware and not having been advised of any time limits for taking action under the Testator's Family Maintenance Act 1912. Paragraphs 4 and 5 of that affidavit are as follows:

"4During the period 17th March, 1997 to 21st November, 1997 I corresponded from Germany with my solicitors in Hobart through some very close friends of mine in Hobart, Mr and Mrs G Baierl, and on the 21st November, 1997 I confirmed to my said friends that my solicitors should proceed with a claim for me against the Estate of Robert Bertram.

5That I am a widow and in receipt of a widow's pension from the Government of DM3100 per month.  I do not own my residence in Berlin but only rent it and I do own the furniture in my flat and have some savings.  I do have a car in Hobart which is kept in storage for me by Mr and Mrs G Baierl.  Following a fall in 1996 which resulted in a broken hip I have difficulty walking far and have to use a walking stick on occasions."

The rule gives me a broad discretion, but it can be exercised only if I am satisfied by the applicant that her attendance is not necessary in the interest of justice and that requires a consideration of the subject matter of the cause or matter and the cost of procuring her attendance.  I take the "cause or matter" to be the application for an extension of time.  In Mannion v Charlton 28/1978, Neasey J said, at 5:

"Relevant considerations in an application to extend time under this Act were considered by Crisp J in In Re Wherrett (1963) Tas SR 178. I respectfully agree with what his Honour said there, the main substance of which is contained in the propositions that the justice of each case must depend upon its own relevant circumstances, and that delay is an important factor.

I also respectfully agree with what I understand to have been the point of substance made by the Full Court of the Supreme Court of New South Wales in Spies v Baker (1970) 3 NSWR 39; namely that if in all the circumstances there is little reasonable chance of the application succeeding, that is a factor which may be taken into account in the exercise of discretion. I do not take that proposition to be inconsistent with what Crisp J said in In re Wherrett, supra."

The ability of the respondent to direct cross-examination of the applicant to the issues of delay and the arguability of her prospects of success would seem to me to be necessary in the interests of justice.  Paragraph 4 of her affidavit, set out above, suggests that she communicated with her solicitors during the period immediately following her return to Germany in March 1997 up until 21 November 1997, on which date she seems to have confirmed to her Hobart friends that they should instruct the solicitors on her behalf to commence proceedings.  Cross-examination on her state of knowledge of time limits and of the progress of any application for probate would seem to be called for in the respondent's interests.  The applicant is only required to establish that she has an arguable case on an application for an extension of time (Clayton v Aust (1993) 9 WAR 364 at 370; West v West A10/1996) and cross-examination on this issue is legitimate.  Such an application is not, in my view, the occasion for a full scale cross-examination on the merits of her case prior to trial; but there may be matters which could properly be put to the applicant, without embarking on any such tactic, which could reflect upon the arguability of her case.  To the extent that counsel might seek to widen the issue further by premature cross-examination there might well be a penalty in costs.  Prima facie, then, there are two areas upon which, in my view, the respondent ought to have the right to cross-examine if the applicant wishes to rely on her affidavits.

Another consideration is cost.  In the context of a claim for provision out of a relatively large estate, the expenditure of $2,000 - $2,500 in air fares does not seem unduly high.  The applicant is a regular visitor to Tasmania.  Her sojourn here normally occurs in the warmer months.  Clearly she has the means to travel and to subsist while she is here.  Her attendance for cross-examination on an application for an extension of time, as well as on the hearing of the originating application if she is granted an extension of time, may necessitate an additional visit to Australia, depending upon when hearing dates can be arranged.  There is a reasonable possibility, so far as the Court is concerned, that an appointment for the former can be given later in the year requiring merely the advancement of her normal departure time for Tasmania, while an appointment for the hearing of the substantive matter (if the extension is granted) could be given before her departure at the end of summer.  There is no evidence that she has commitments preventing her from meeting such a time table or that an extension of her stay here would be financially beyond her.

In all the circumstances, I am not satisfied that the applicant's attendance for cross-examination on her affidavit is not necessary in the interests of justice.  The application is refused.