Woodley v Woodley - [2015] WASC 500

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 Defendant
RAYMOND THOMAS WOODLEY
Second Defendant
WAYNE CHARLES WOODLEY
Third Defendant
ANN CHERYL LEWIS
Fourth Defendant
ROSLYN PATRICIA WOODLEY
Fifth Defendant
KIM REBECCA WOODLEY
Sixth Defendant
ANGELA WOODLEY
Seventh Defendant
NATALIE CHANTELLE BIRCH
Eighth Defendant
MORGAN 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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] WASC 500
Decision Date: 22 DECEMBER 2015

CaseChat Overview and Summary

In the Family Court of Australia, Woodley v Woodley involved a dispute concerning the addition of new allegations in a statement of claim. The respondent, who was also the father, sought leave to amend his statement of claim to include allegations of sexual abuse against the appellant, the mother. The father's application for leave was opposed by the mother on the basis that the allegations were an afterthought and that their admission would prejudice her. The court was required to determine whether the father should be granted leave to amend his statement of claim and add the new allegations.

The court examined the principles of amendment of pleadings and the factors relevant to granting leave. The court recognised that amendments to pleadings are generally disfavored but may be granted if they are in the interests of justice. The court considered the nature of the new allegations, the delay in bringing them, and the prejudice that might result to the other party. The court also noted that the father had not made any attempt to raise the allegations earlier in the proceedings and that the delay was significant. However, the court also recognised that the allegations were serious and that the father had a legitimate interest in pursuing them.

The court concluded that the father should not be granted leave to amend his statement of claim and add the new allegations. The court found that the delay was significant and that the allegations were an afterthought. The court also found that the mother would be prejudiced if the allegations were admitted, as they would require her to defend a serious allegation that she had not had an opportunity to prepare for. The court noted that the father had not shown any exceptional circumstances that would justify the grant of leave. The court also found that the father had not acted reasonably in delaying the making of the allegations.

The court ordered that the father's application for leave to amend be dismissed. The court also made an order for costs in favour of the mother. The court found that the father's application was frivolous and that the mother was entitled to costs on an indemnity basis. The court noted that the father's delay in making the allegations had caused significant prejudice to the mother and that the costs order was necessary to deter similar conduct in the future.

Orders