Woodley v Woodley
[2015] WASC 500
•22 DECEMBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WOODLEY -v- WOODLEY [2015] WASC 500
CORAM: PRITCHARD J
HEARD: 22 DECEMBER 2015
DELIVERED : 22 DECEMBER 2015
FILE NO/S: CIV 1821 of 2013
BETWEEN: TERRY RAY WOODLEY
Plaintiff
AND
ROSS MAXWELL WOODLEY
First DefendantRAYMOND THOMAS WOODLEY
Second DefendantWAYNE CHARLES WOODLEY
Third DefendantANN CHERYL LEWIS
Fourth DefendantROSLYN PATRICIA WOODLEY
Fifth DefendantKIM REBECCA WOODLEY
Sixth DefendantANGELA WOODLEY
Seventh DefendantNATALIE CHANTELLE BIRCH
Eighth DefendantMORGAN LEE WOODLEY
Ninth Defendant
Catchwords:
Practice and procedure - Pleadings - Leave to amend - Statement of claim - Addition of new allegations - Delay
Legislation:
Nil
Result:
Application allowed in part
Category: B
Representation:
Counsel:
Plaintiff: In person
First Defendant : Mr M D Cuerden SC
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : Mr M D Cuerden SC
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Solicitors:
Plaintiff: In person
First Defendant : MDS Legal
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : MDS Legal
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Cases referred to in judgment:
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406
Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152
PRITCHARD J:
(This judgment was delivered extemporaneously on 22 December 2015 and has been edited from the transcript.)
The plaintiff and the first and second defendants are named as executors of the will of Shirley Grace May Woodley, who died on 31 July 2011. In these proceedings, the plaintiff and the first and second defendant are involved in a dispute in respect of who should act as the executors of the estate of the late Ms Woodley (the estate). The plaintiff seeks an order that the Court issue probate to him in respect of Ms Woodley's will and an order that it passes over the first and second defendants as executors of the estate, leaving him as the executor.
In the present application, the plaintiff seeks to amend the statement of claim to add some significant new allegations. In support of his application, he has provided a minute of proposed amendments, dated 8 October 2015 (the Minute), and he relies on a number of affidavits and a witness statement, namely an affidavit he swore on 7 October 2015; an affidavit of Valentina Woodley, sworn 7 October 2015; an affidavit of Gregory Arthur Lewis, sworn 6 October 2015; an affidavit of Bradley Russell Riegert, sworn 6 October 2015; an affidavit of Ann Cheryl Lewis, sworn 6 October 2015; and a witness statement of Leonard Clive Walton, made on 16 December 2015.
The first and fifth defendants (the defendants)[1] resist part of the application to amend and, in that respect, rely upon two affidavits sworn by the first defendant, one sworn on 16 November 2015 and the other sworn on 23 October 2015.
[1] The remainder of the defendants did not participate in the hearing of the application.
The defendants consent to the amendments which are set out in the Minute at paragraph 11(c) (but as to the first line of that proposed amendment only), paragraph 11(h) and paragraphs 11(q)(i) ‑ (vi). Senior counsel for the defendants has assured me that those amendments were agreed to some time ago, that there has been discovery already in respect of them, and that witness statements have been prepared in anticipation of those amendments being made. Consequently, the making of those amendments will not result in any prospect of delay in this matter proceeding to trial. In view of that assurance, and the consent of the defendants to the amendments, I propose to permit the plaintiff to make those amendments, that is, the amendments set out in the first line of paragraph 11(c), paragraph 11(h) and paragraphs 11(q)(i) ‑ (vi) in the Minute.
However, the plaintiff seeks to amend the statement of claim in other ways, including the amendments set out at paragraph 12(iv) ‑ (vi) in the Minute. The defendants do not oppose these amendments because they pertain to allegations concerning the suitability of the second defendant to act as the executor of the estate. In the course of the hearing this morning, it appeared that notice of the application to amend had not been given to the second defendant.[2] Nevertheless, I propose to deal with this aspect of the application because I have formed the view that it is not appropriate to grant leave to amend the statement of claim in the terms set out in those paragraphs of the Minute. I will provide my reasons for this conclusion in a moment.
[2] The second defendant entered an appearance on the 17 June 2013. More recently, he has not actively participated in the proceedings.
In respect of the balance of the proposed amendments set out in the Minute, that is, the last sentence of paragraph 11(c) and paragraphs 11(m) ‑ (p), the defendants oppose the application for leave to amend. For the reasons which follow, I do not propose to grant leave to amend the statement of claim to permit the amendment set out in the last sentence of paragraph 11(c), paragraphs 11(m) ‑ (p) and paragraphs 12(iv) ‑ (vi) of the Minute (the proposed amendments), and the application for leave to amend to that extent will therefore be dismissed.
In these reasons, I deal with the following matters:
(1)a brief outline of the nature of the case;
(2)an overview of the plaintiff's existing case;
(3)an overview of the proposed amendments;
(4)an outline of the principles which apply to the amendment of pleadings; and
(5)why I do not propose to permit the proposed amendments.
A brief outline of the nature of the case
It is appropriate to bear in mind that the present action involves two issues. The plaintiff and the first defendant each seek an order for the grant of probate in respect of the will of the late Ms Woodley. I should observe that the primary terms of the will are not in dispute. The only dispute that lies between the parties in respect of the will pertains to the status of some handwritten amendments.
The primary issue in the present action concerns the question of whether some of the executors should be passed over. It is appropriate to bear in mind the nature of the Court's inquiry in respect of matters of this kind. That was an issue discussed by EM Heenan J in Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne.[3] His Honour noted that:[4]
[54]There can be no doubt that this court does have power to pass over an executor who has been named in a will or a person with a right to apply for administration in exceptional circumstances and even in other circumstances.
[3] Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152.
[4] Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 [54] ff.
And, later, his Honour observed:
[55]A series of examples in which orders passing over a named executor might be made can be found in Tristram and Cootes: Probate Practice [25‑1082], [25.154] and these include cases where the person entitled is unfit [25.134]. So a sole executor in prison was passed over in Re Estate of Drawmer (dec'd) (1913) 108 LT 732; where an executor had unsuccessfully propounded a forged will she was passed over in Re Paine's Estate (1916) 115 LT 935; an applicant for administration who has murdered the deceased will be passed over: In the Estate of Crippen [1911] P 108; and a spouse convicted of manslaughter will be passed over as executor: Re Estate of S (dec'd) [1968] P 302 and Re Giles (dec'd) [1972] Ch 544.
[56]The inherent jurisdiction of the court to pass over an applicant for probate who is a named executor has also been recognised in Re Hillston; Bar‑Mordecai v Rotman (Unreported, NSWSC, Library No 9804681, 4 September 1998); In the Estate of Shephard (dec'd) (1982) 29 SASR 247; and Re Estate of Crane [15]‑[23].
His Honour then discussed some of the authorities and said:[5]
[60]All of the discussions of this principle emphasise that it is a serious matter to pass over an applicant for a grant who is an executor named by the deceased because, presumably, the deceased has made his or her choice of executors with knowledge of the person concerned and such a person is generally entitled to a grant of probate: Marsh v Patten (1868) 7 SCR (NSW) Eq 18; and Porteous v Rinehart (1998) 19 WAR 495 at 518, so that exclusion of such a person requires special or stringent grounds: Evans v Tyler (1849) 2 Rob Eccl 128; (1849) 163 ER 1266.
[5] Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 [60] ff.
His Honour observed:
[61]The testator's choice of a designated person to be executor or co‑executor implies that the deceased reposed trust in that person and considered him or her to have been suitable and capable of performing the duties required ‑ Monty Financial Services Ltd v Delmo [1996] 1 VR 65; Estate of Rogers v Rogers [2009] WASC 358 [32]; and Uniting Church in Australia Property Trust (NSW) v Millane [2002] NSWSC 1070 [9].
[62]Some guidance as to the exercise of the power to pass over a named executor who is an applicant for probate can also be found in cases dealing with an executor who is not "competent" within the meaning of s 36 of the Administration Act because of misconduct in relation to the estate before probate: Hunter v Hunter (above); Re Hillston; Bar-Mordecai v Rotman (above); and Uniting Church in Australia Property Trust (NSW) v Millane [6]‑[7]. The primary concern of the court will be to ensure that the estate will be duly and properly administered according to the terms of the will: In the Goods of Loveday [1900] P 154 at 156; Bates v Messner (above); Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80, 107‑108, so that the dominant consideration is the welfare of the beneficiaries: Miller v Cameron (1936) 54 CLR 572; [1936] ALR 301, 580; and Elovalis v Elovalis [2008] WASCA 141 [30]‑[40].
I bear those observations in mind as I consider the nature of the application made today.
Overview of the plaintiff's existing case
In the statement of claim, the plaintiff contends that:
The first defendant is not suitable or competent to be appointed as executor and trustee or co-executor and co-trustee of the deceased's estate and should be passed over.[6]
[6] Statement of claim [11].
That contention is founded on a large number of particulars[7] which effectively boil down to five contentions. They are as follows:
(a)the first defendant is indebted to the estate, but refuses to acknowledge that this is so and has, therefore, a conflict of interest;
(b)the first defendant is in a dispute with the plaintiff in respect of the assets and liabilities of the estate;
(c)the first defendant's conduct in dealing with what the plaintiff contends are estate assets suggests that the first defendant would not be able to act in accordance with his obligations as the executor of the estate without being in a position of conflict with his own self-interest;
(d)the general conduct of the first defendant is of a kind which renders him unsuitable to act as the executor of the estate; and
(e)the health of the first defendant is such as to render him unsuitable to act as the executor of the estate.
[7] Statement of claim [11](a) - (s).
For ease of reference, I will refer to the contentions in (c) and (d) as the 'disqualifying conduct allegations'. These include allegations that the first defendant has dealt with assets of the estate as if they were his own; and that the first defendant has behaved, with respect to the plaintiff, in a way that suggests a considerable degree of discord between them. There are a variety of allegations in relation to the general conduct of the first defendant which make up that plank of the plaintiff's case.
Overview of the proposed amendments
The proposed amendments in relation to the first defendant are set out in the Minute at paragraph 11(c) (other than the first line) and paragraphs 11(m) ‑ (p).
In broad sweep, the plaintiff seeks to add allegations that the first defendant (amongst others) engaged in a variety of conduct which renders him unfit to act as an executor of Ms Woodley's estate, including conduct which the plaintiff contends amounts to entering into or participating in a scheme or arrangement to evade income tax; allegations that the first defendant would be unable to distinguish his separate roles and responsibilities as a director or shareholder in other trustee companies and family trusts, from his role as an executor of the estate; and alleged dealings with assets which the plaintiff says are assets of the estate.
Insofar as the second defendant is concerned, the proposed amendments in paragraph 12(iv) ‑ (vi) of the Minute relate to the conduct of various parties in respect of properties which I gather the plaintiff contends are part of the property of the estate.
An outline of the principles which apply to the amendment of pleadings
The principles relevant to the exercise of the Court's discretion to permit an amendment of a pleading were discussed by Edelman J in Sino Iron Pty Ltd v Mineralogy Pty Ltd,[8] where his Honour said:
[8] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406 [29] ‑ [32].
[29]Order 21 r 5 provides that the court may allow the amendment of a pleading, on such terms as to costs or otherwise as may be just and in such manner as the court may direct. The principles concerning whether the amendment should be allowed are not prescribed by O 21 r 5. They involve the exercise of discretion in the interests of justice.
[30]The overarching principles concerning amendment of pleadings were considered by the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University. That was a case which considered the principles in the context of the Court Procedures Rules 2006 (ACT). In the joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ, their Honours said that
An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend.
[31]The principles in Aon were also applied by Beech J, and summarised, in the context of the Rules of the Supreme Court 1971 (WA), in Hightime Investments Pty Ltd v Lungan [No 2] as follows:
(i)the effect of an amendment on the court and on other litigants is relevant;
(ii)there is no right to amend to introduce an arguable case and it is wrong to say that only in extreme circumstances would a party be shut out from litigating an arguable case;
(iii)justice requires that parties have a proper opportunity to plead their case, but limits may be placed on repleading when delay and cost are taken into account;
(iv)a just resolution does not mean that a party will always be permitted to raise any arguable case at any point in the proceedings, on payment of costs, even indemnity costs;
(v)the inevitable strains of litigation must be taken into account in weighing the adverse consequences of delay ‑ this applies to natural persons and other litigants;
(vi)the nature and importance of the amendment to the party amending must be taken into account;
(vii)attention must be given to the extent of the delay, and the costs associated with it, the prejudice which might reasonably be assumed to follow from it and any prejudice that is shown;
(viii)the point in the litigation relative to the trial may be an important consideration;
(ix)where a discretion is sought to be exercised in favour of a party, an explanation will be called for; and
(x)the point can be reached where a party has had a sufficient opportunity to put its case.
[32]To these ten points, the following matters of particular context in the Rules of the Supreme Court may be added:
(xi)Order 1 r 4A provides that a goal of the Supreme Court practice and procedure is the elimination of delay;
(xii)Order 1 r 4B provides for the principles of case flow management including (a) the just determination of litigation, as well as the following (which are, in any event, aspects of (a)): the efficient disposition of the Court’s business, the efficient use of judicial resources, the timely disposal of business, and proportionality.
I need say no more for present purposes than that I gratefully adopt what his Honour has said by way of a summary of the relevant principles.
Why I do not propose to permit the proposed amendments
I have concluded that leave to make the proposed amendments should be refused having regard to the following considerations.
First, I start by noting that the action has, relatively speaking, a long history. As I have already mentioned, Ms Woodley died about four and a half years ago. Although there is a dispute in these proceedings regarding the will in respect of which probate should be granted, there really is no dispute between the parties in relation to the substantive provisions of the will. The dispute pertains to additional handwritten annotations or amendments made to the will and the status of those amendments.
The estate itself appears to be a sizeable one and yet the position is, by virtue of the dispute in respect of the executors of the estate, that no beneficiary has yet had the benefit of Ms Woodley's bounty. In my view, it is undesirable for there to be protracted proceedings to determine who should act as the executor of an estate, which necessarily have the consequence of causing considerable delay in the administration of the estate being able to be undertaken.
The second consideration to which I have had regard is the Court's case management principles, and the stage the action has reached. I take into account the fact that orders were made by Registrar Boyle on 15 May 2015 programming the action to trial (the trial programming orders). Those orders included orders for the filing of witness statements, the preparation of a book of documents, and the entry of the matter for trial.
In addition, and not surprisingly, the Registrar made an order that there be no further amendment to the pleadings except by leave and it is by virtue of that order that the plaintiff seeks leave to make the amendments that he does today. Although there has been some delay in compliance with the timetable set by the Registrar and some extensions of time in respect of that timetable, nevertheless, trial preparations are well underway. Witness statements have been filed by the plaintiff. The first and fifth defendants' witness statements are well underway in their preparation, and it is the Court's intention that the matter be listed for trial as soon as possible following a review of compliance with the trial programming orders, which review is to take place at a strategic conference in February 2016.
Thirdly, I have outlined the background and present status of the action because in my view, it is very clear that the nature of the proposed amendments are such that they will inevitably result in a delay in this case proceeding to trial and, quite possibly, a significant delay. The reasons for that conclusion are as follows. The proposed amendments contain allegations of a most serious kind, including in some instances allegations of criminal conduct or breaches of trust, which, with respect, are expressed in vague and unparticularised terms. Inevitably, were the statement of claim to be amended in the terms proposed, there would be an application by the first defendant for particulars to assist him to understand the case against him. I should also observe that the ambiguous or vague nature of the framing of the proposed amendments constitutes a reason in itself to refuse leave to amend in those terms. In addition to an inevitable application for particulars, there would be a need for further discovery, potentially of a significant volume, and then the need to prepare further witness statements over and above those which are already contemplated by the parties (or certainly by the first defendant) in preparation for trial.
In addition, the nature of some of the allegations contained in the proposed amendments, namely those pertaining to taxation matters, is such that the distinct possibility exists that expert accounting evidence would be required to be given at the trial.
The final consideration that I have taken into account in determining that leave should be refused harks back to the principles that I mentioned at the outset, that is, the principles governing the circumstances in which an executor will be passed over. The disqualifying conduct allegations in the statement of claim as presently framed include a large number of allegations going to the reasons why the plaintiff says that the first and second defendants should be passed over as executors of the estate. Having regard to the nature of the proposed amendments, it seems to me that, properly characterised, they simply constitute further examples of what the plaintiff already relies upon in his pleading as constituting disqualifying conduct. In my view, the disqualifying conduct allegations already made in the statement of claim are sufficient in their content and number to constitute an adequate vehicle to test the plaintiff's claim that the first and second defendants should be passed over as executors.
Having regard to all of these considerations, I have formed the view that this is not an appropriate case for the exercise of discretion to grant leave to amend the statement of claim in terms of the proposed amendments.
There is one further matter that I should add and that is that the defendants sought to resist the proposed amendments at paragraphs 11(m) ‑ (p) of the Minute on the basis that to permit the amendments would be to permit an abuse of process. Counsel for the defendants contended that the matters set out in those paragraphs were founded on information which, it appeared, the plaintiff had derived from documents discovered in other proceedings in this court relating to the estate (I will call those the Coronation Road proceedings). Counsel for the defendants submitted that the precise nature of the allegations made in the proposed amendments reflected the content of documents discovered in the Coronation Road proceedings. Counsel for the defendants contended that notwithstanding the content of the affidavits relied upon by the plaintiff in support of the present application, those affidavits did not provide any support for the plaintiff's contention that his knowledge of the matters raised in the proposed amendments had been obtained from family members or through his own deduction.
In the course of his submissions, the plaintiff accepted that he had used a limited amount of information derived from documents discovered in the Coronation Road proceedings without leave to do so, but maintained the position that the balance of the information supporting the proposed amendments had been derived from his own knowledge or the knowledge of other family members.
It suffices to say that having regard to the conclusion that I have otherwise reached, it is unnecessary to form any view in relation to the basis of the allegations contained in the proposed amendments or, specifically, any view as to whether the plaintiff has relied upon information obtained through the discovery of documents in other proceedings.
Accordingly, save in respect of those amendments to which the defendants have consented, the plaintiff's application for leave to amend the statement of claim should be dismissed.
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