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  • Unreported Judgment

Fenton-Anderson v Power

 

[2020] QDC 293

DISTRICT COURT OF QUEENSLAND

CITATION:

Fenton-Anderson & Anor v Power & Anor [2020] QDC 293

PARTIES:

Peta Divina Alexandra Fenton-Anderson & Toni Leigh Dolores Fenton-Leslie  

(Applicants)

V

DAVID CLIFFORD POWER & NICOLAS FLETCHER SMITH (as executors of the Will of David Joseph Fenton deceased)

(Respondents)

AND

SUZANNE MICHELLE FENTON

(Respondent by election)

FILE NO:

DC 42/18 No 1186 of 2018

DIVISION:

Civil

PROCEEDING:

Oral application made 13 July 2020   

ORIGINATING COURT:

District Court at Toowoomba 

DELIVERED ON:

20 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2020

JUDGE:

Porter QC DCJ

ORDERS:

  1. Adjournment application refused.
  2. Costs of the adjournment application reserved. 

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – ADJOURNMENT – where the self-represented respondent by election made an oral application on the first day of the trial – where the respondent by election applicant relied on her ill-health – where the respondent by election sought further time to file evidence – where the respondent by election knew of the trial dates well in advance of the trial – where the respondent by election’s ill-health might preclude her from participating in the trial at any future time – where the respondent by election’s interests would be the subject of submission by the executor in any event consistent with the executor’s duty – where the applicant could not pay the costs thrown away by any adjournment 

LEGISLATION

Succession Act 1981 (Qld) ss. 41(1); 41(8)

Uniform Civil Procedure Rules 1999 (Qld) rr. 5; 112(e)(ii)

CASES

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27

Commissioner of the Australian Federal Police v Hart [2016] QCA 215

Comninos v Buckley; The Estate of Comninos [2019] NSWSC 968

DPP v Ozakca (2006) 68 NSWLR 325

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46

Johnson v Public Trustee of Queensland as executor of the will of Brady (deceased) [2010] QCA 260

Nobarani v Mariconte (2018) 265 CLR 236

Rajski v Scitec Corporation Pty Ltd (unreported, NSWCA, Full Court, 16 June 1986)

Sullivan v Department of Transport (1978) 20 ALR 323

SECONDARY SOURCES

John de Groot and Bruce Nickel, Family Provision in Australia (LexisNexis Butterworths, 5th ed, 2016)

COUNSEL:

K Kelso for the applicants

A Collins for the respondent executors

Respondent by election self-represented

SOLICITORS:

Wonderley & Hall for the applicants

Bernays Lawyers for the respondent executors

Respondent by election self-represented

Summary

  1. [1]
    On 23 February 2018, Mr Joseph Fenton was lost to those who loved him aged 72.  He died leaving a will dated 22 April 2010 which had been prepared by Mr David Power, a solicitor, who is also one of the respondent executors (the Will).  The primary asset of his estate is his six bedroom house and rural property at Cambooya, worth some $1m.  The primary beneficiary of the Will was Mrs Suzanne Michelle Fenton, Mr Fenton’s ex-wife (Mrs Fenton).  She received effectively all the personal estate (limited to some modestly valuable antiques and other minor chattels) along with a right to reside for life at Cambooya on certain conditions.  The various alternative arrangements for Cambooya should she be unable to meet the primary conditions of her occupation also largely favoured Mrs Fenton. 
  1. [2]
    Mr Fenton had two adult daughters at the time of his death.  They benefitted under the Will in a modest way and only if the conditions arose under the Will for sale of Cambooya.  By originating application filed 19 November 2018, they applied for further provision from the estate of their father pursuant to s. 41(1) Succession Act 1981 (Qld).  
  2. [3]
    Mrs Fenton initially obtained separate representation in the proceedings as a beneficiary under the Will by filing a Notice of Address for Service on 14 December 2018.  The reason she chose to be separately represented was never examined in the adjournment application or at trial.  That Notice also notified an intention for Mrs Fenton to seek provision out of the Estate.  There was no further mention of the application by her for further provision in any proceeding before me, nor in any document put before me. 
  3. [4]
    Her solicitors ceased to act for Mrs Fenton by 18 February 2019.  On that date, Mrs Fenton filed the awkwardly titled Notice That Party Acting in Person.  That Notice gave the address of the Cambooya property as her address for service and specified mobile and land line numbers.  No email address was specified. 
  4. [5]
    Following the filing of that Notice, Mrs Fenton maintained her separate participation in the proceedings up to trial, despite the availability of the executors to seek reasonably to uphold the Will at trial in accordance with their duties.[1]
  5. [6]
    The proceeding was listed for trial before me commencing on 13 July 2020. 
  6. [7]
    In the days leading up to the commencement of the trial, Mrs Fenton communicated a wish to adjourn the trial.  While no written application was ever made, nor any sworn material provided, Mrs Fenton appeared by telephone on the first day of the trial and asked for the adjournment of the trial.   I dismissed her application.  In summary, the application was dismissed because:
    1. (a)
      First, Mrs Fenton sought to adjourn the trial because her ill health precluded her from representing herself at the trial.  However, Mrs Fenton conceded in the course of the application that her many health problems were such that she could not guarantee she would be fit to participate in a trial at any future date.  I also formed the view over the course of hearing the adjournment application that whatever ill health she was suffering that day did not appear to prevent her from participating with some effectiveness in the proceedings;
    2. (b)
      Second, Mrs Fenton said that she wished to file further evidence in support of her defence of the applicants’ claims.  However, she gave no adequate explanation as to why she had not taken steps to put any further material before the Court prior to trial;
    3. (c)
      Third, Mrs Fenton’s illness and ill-preparedness did not mean that her interests would not be represented at trial.  The executors appeared at trial represented by experienced counsel and could be expected to (and in fact did) seek reasonably to uphold the Will;
    4. (d)
      Fourth, the applicants gave evidence that Mrs Fenton had not paid a costs order of some $13,000 already made in the proceedings and that they could not afford to carry the costs thrown away if there was an adjournment.  Mrs Fenton appeared unable within a reasonable time (or at all) to pay an order for costs thrown away by the adjournment;
    5. (e)
      Fifth, I made clear to Mrs Fenton that it was open to her to participate in the trial to the extent she could, and to seek leave to put further affidavit material or evidence before the Court during the trial (and with the assistance of the executors, she in fact did so);
    6. (f)
      Sixth, given the evidence already before the Court, it did not seem to me that the subjects Mrs Fenton said she wished to address were likely to have a fundamental effect on the issues arising in the proceedings, given the existing evidence and the prospect of the co-operation of the executors in placing relevant material beneficial to Mrs Fenton before the Court (which they did); and
    7. (g)
      Finally, there was a very substantial private and public interest in the disposition of this proceeding at the time allocated for it in these sittings.

Procedural history prior to trial

  1. [8]
    The applicants commenced the proceedings on 19 November 2018, just short of the expiry of the nine month period specified in s. 41(8) Succession Act.  They filed affidavits in support of the application sworn by each of them at the same time.  Those affidavits, relevantly:
    1. (a)
      Set out a history of the family’s life;
    2. (b)
      Referred to their parents separation in 1980 and divorce in 1983 and that their parents did not live together again until 1991;
    3. (c)
      Stated that although their mother moved back into their father’s house in 1991 with the applicants, that was because of their mother’s injury in a horse riding incident;
    4. (d)
      Stated that although their father and mother lived under the same roof from 1991 until late 2017, they lived entirely separate lives and showed no sign of being a couple;
    5. (e)
      Spoke of their close relationship with their father;
    6. (f)
      Explained the circumstances of the purchase of the Cambooya property and the life of the family after it moved to that location;
    7. (g)
      Spoke of the difficulties in their own relationship with their mother from at least about 2005, including in particular her business of breeding horses which they said she expected the applicants to do the labour to carry out;
    8. (h)
      Spoke of the serious animus of their father to their mother at least in his later years, and particularly in his last months and his efforts close to his death to avoid her and alter his Will in their favour;
    9. (i)
      Dealt with the circumstances of the sub-division of Cambooya to provide smaller lots for each applicant and the fate of those lots;
    10. (j)
      Gave particulars of the failure, in their view, of Mrs Fenton to maintain Cambooya in the manner called for by the Will;
    11. (k)
      Dealt with the circumstances in which they received a transfer of $40,000 from their father’s account in the last days prior to his death; and
    12. (l)
      Explained their financial position and personal circumstances.
  2. [9]
    The maintenance issue raised in paragraph (j) above requires further explanation.  The Cambooya property was given to the executors on trust, relevantly, as follows: 
  1. I GIVE DEVISE AND BEQUEATH all of my right title and interest in and to the land and buildings and improvements situated at 13295 New England Highway, Cambooya in the State of Queensland described as Lot 3 on SP 203038 in the County of Aubiny and Parish of Cambooya contained in title reference 50726363 in the County of Aubiny and Parish of Cambooya contained in title reference 50726363 together with any water rights or licences I hold to my Trustee UPON the following Trusts namely:-
  1. (i)
    to permit my Former Wife SUZANNE MICHELLE FENTON to reside therein and to use and occupy the same rent free for her lifetime or until her remarriage or until she is no longer capable of residing therein or using and occupying the same owing to some physical or mental infirmity or illness which must be certified to by a properly qualified medical practitioner or until she shall by writing under her hand indicate an intention to my trustees to no longer to reside therein and to use and occupy the same whichever shall first occur;
  1. (ii)
    I DIRECT that whilst my Former Wife SUZANNE MICHELLE FENTON resides in and uses and occupies the said land and dwelling house she shall make payment of all rates, taxes, insurance premiums, maintenance costs and charges and other outgoings which may relate to the said land and dwelling house and that she shall keep the same in good and tenantable repair fair wear and tear expected; …
  1. [10]
    The issue of whether Mrs Fenton was meeting the obligations in clause 5(ii) of the Will and whether she was financially and physically capable of doing so was a live issue from the filing of the first affidavits by the applicant.  No declaratory or other relief directly determining that question was sought in the proceedings.  However, past and current compliance with that condition and the prospect of future compliance was a matter relevant to the determination of the claims for further provision.
  2. [11]
    On 7 December 2018, the parties agreed consent directions in accordance with the relevant Practice Direction and in the form commonly adopted.  It provided:
    1. On or before 14 December 2018, any person who chooses to be separately represented shall file and serve a Notice of Address for Service under Rule 29 if that person intends to apply for provision out of the estate, and that is to be stated in the Notice of Address for Service.
    2. On or before 25 January 2019, any person who has filed a Notice under paragraph 1 of this Order shall cause his/her Affidavit/s to be filed and served upon the Applicants and the Respondents, or their Solicitors.
    3. On or before 15 February 2019, any Affidavits by or on behalf of the Respondent shall be filed and served upon the Applicants and upon any other person who has filed a Notice under paragraph 1 of this order, or their Solicitors.
    4. On or before 8 March 2019, any further Affidavits by or on behalf of the Applicants, the Respondents, or any other person who has filed a Notice under paragraph 1 of this Order shall be filed and served upon all other parties, or their Solicitors.
  3. [12]
    It then provided for a conference of solicitors and failing resolution at the conference, a mediation.
  4. [13]
    On 14 December 2018, and seemingly in accordance with the directions, Mrs Fenton filed a Notice of Address for Service that specified that Mrs Fenton intended to apply for provision out of Mr Fenton’s estate.  That notice specified Mrs Fenton’s solicitors as Hede Byre & Hall of Toowoomba.   
  5. [14]
    Again consistent with the directions order, Mrs Fenton filed an affidavit on 25 January 2019.  That affidavit was short and asserted that despite the divorce, Mrs Fenton remained close to Mr Fenton for the benefit of their daughters and that Mr Fenton had serious mental health issues in around 1980 and tried to kill Mrs Fenton.  That affidavit was seemingly not filed by her solicitors, but by Mrs Fenton personally.
  6. [15]
    On 18 February 2019, Mrs Fenton filed a Notice stating she was acting in person.  She does not appear to have had legal representation thereafter, though she stated during the adjournment hearing that she had had advice from a junior barrister, a retired Judge of the Court of Appeal and a number of succession law solicitors.
  7. [16]
    Mr Power caused an affidavit to be filed on behalf of the respondents on 11 March 2019.[2]  At that time he swore, relevantly:
  1. The Executors have received the affidavits filed herein by the Applicants.  I have also received the Affidavit of Mrs Fenton sworn 25 January 2019.  I have been informed by Mrs Fenton and verily believe that she intends to supply and file further affidavit material addressing the matters raised in the Applicants’ affidavits.  At the date of this my [sic] affidavit I do not have information from Mrs Fenton to enable me to assess precisely what are the issues in dispute between the parties and upon receipt of further affidavit material I can review that… 
  1. [17]
    Mrs Fenton did not file any affidavits at that time, nor at any reasonable time thereafter.  (Nor did Mrs Fenton suggest during the adjournment hearing, nor indeed during the trial, that she had ever offered to provide such information.)
  2. [18]
    This presumably prompted an application by the applicants to obtain documents relating to Mrs Fenton’s health and financial position.  On 8 July 2019, Judge Koppenol directed Mrs Fenton to file her affidavit material by 8 August 2019.  Mrs Fenton was present at the making of that order.  Thereafter she filed six affidavits.  Those affidavits became exhibits 11.1 to 11.6 in the trial.  Those affidavits contained the following material:
    1. (a)
      Evidence of Mrs Fenton’s serious and on-going medical problems;
    2. (b)
      Evidence from Mrs Fenton as to her entitlement to funds from her mother’s estate and some other evidence of her financial position;
    3. (c)
      Evidence alleging claims of the estate against the applicants for various amounts said to have been lent to them by their father, and said to have been taken by them from their father’s superannuation fund;
    4. (d)
      Allegations of misconduct by Ms Peta Fenton-Anderson as Mr Fenton’s carer and in respect of the obtaining and alleged use of an Enduring Power of Attorney (EPOA).  
  3. [19]
    These affidavits were filed by Mrs Fenton more than 6 months after date specified for her material in the Directions Order and, perhaps more relevantly, five months after Mr Power’s affidavit.  They were filed after the necessity of a directions hearing and order from Judge Koppenol.  There was no evidence before more (nor any suggestion by Mrs Fenton in her extensive unsworn statements during the adjournment application hearing) as to why further material could not have been filed at that time.  Nor was there any evidence or statement by Mrs Fenton during the adjournment hearing that she notified the other parties of an intention to file further material.  No further material was ever filed.  
  4. [20]
    The applicants pressed their application for disclosure and on 13 September 2019, Judge Richards ordered disclosure of various medical and financial records by identified third parties.  Her Honour ordered that Mrs Fenton pay the costs of that application.  I do not have reasons for her Honour’s order before me.  However, it is plain that her Honour must have considered that the material sought was necessary for the just determination of the family provision application and that her opposition to the application was unjustified.  Mrs Fenton appeared in person on the hearing before Judge Richards.
  5. [21]
    The documents were subsequently provided by the third parties and exhibited to Mrs Fenton-Anderson’s long affidavit which was relied upon on the adjournment application and the trial.[3]
  6. [22]
    The applicants obtained an assessment of the costs of the disclosure application which were assessed at $13,601.17 with judgment for that sum entered on 1 June 2020.  That sum has not been paid.
  7. [23]
    At some stage after that order, the matter was listed for trial before me in these sittings, which were set for the two weeks from 13 July 2020.  I have been unable to identify from the material put before me exactly when the listing of the trial for those dates was first notified to the parties. 
  8. [24]
    On the evidence read in the application, it is alleged that Mrs Fenton had notice of the trial since 11 May 2020.[4]   There were other communications between the Court and the parties relating to listing, including communication which pre-dated 11 May 2020, but none of it was tendered in evidence on the adjournment hearing.  I therefore have ignored those communications. 
  9. [25]
    It is worth noting, however, that in the course of the hearing of Mrs Fenton’s adjournment application I referred to communications from Mrs Fenton informally seeking to adjourn the trial reaching back to April 2020 and Mrs Fenton did not dispute that she did so.  Given the circumstances in which the adjournment was argued by Mrs Fenton, however, it might be unfair to put too much weight on that apparent concession and I have not done so.  There were also exchanges during June 2020, which were briefly mentioned in the transcript[5], but again these were not tendered in evidence on the adjournment hearing and are not relied upon in this judgment.
  10. [26]
    The evidence which was adduced relating to communications between the Court and the parties relating to the adjournment comprised email exchanges beginning on 5 July 2020.  On that date Mrs Fenton sent an email to my associate, copied to the other parties, in the following terms[6]:

Dear His Honour QC Porter and Associate Mitchell Locke,

This email is being typed by one of my daily Carers. I am a devout Christian woman and you will always get the truth from me. Mr David Joseph Fenton left a perfectly constructed Last Will and Testament, taking care of all three generations of this family equitably. This Will represents the sum total of David and Michelle Fenton's cumulative assets over our lifetimes.  I don't understand why we are going to Court and who will be paying for these enormous expenses when this can simply be solved through the normal process of mediation. I have been quoted $85 000 to $100 000 to be put into a trust account in order to be legally represented in Court on 13,14 and 15 July 2020. I don't have this kind of money currently, hence this is why I am representing myself.

I wish you to know my current Health Status. On 31st January and 10th June 2020 Pain Specialist Doctor Pieta Le Rioux performed spinal procedures on my Lumbar Sacral Spine by general anaesthetic at St Andrews Hospital Toowoomba. This procedure was first done in January 2015 with a month confined to bed in hospital with daily physiotherapy. Since 23rd July 2019, I have a huge NDIS plan with daily carers for 6 hours every day, 7 days a week. There are a variety of other supports associated with this plan which assists me.  My most recent recovery from the spinal procedure is ongoing at my home. There is much more medical information to be added to the copious quantities that Troy Krahenbring has acquired via Judge Richards ruling on 13th September 2019, (1000 pages).

Since March, when Covid19 struck Australia, I was ordered to self isolate by my GP until it's safe for me to be back out amongst the community. I have had several Covid scares, hospitalised 3 times and have been tested negative. On Monday 6th July I have telephone appointments with one of my specialists and my GP. They have managed to keep me alive with strict orders not to have any more stress. My body cannot withstand anymore of the weekly threats from Troy Krahenbring and the incompetency of David Power, in order to take what is rightfully mine in the Will, off me. At present, it is physically impossible for me to be ready for the trial commencing 13th July and to be sitting up in my wheelchair for 3 consecutive days. 

The barrage of lies through the Family Law Court, DVO's with no evidence and both daughters preventing me from seeing my 5 grandchildren for the last  2 and a half years have destroyed my health. This along with persistent oppression since 2nd January 2018, when Toni stole David's Last Will of 22nd April 2010, is the reason why I'm so debilitated. Both girls have consistently worked together from then on to make my life a living hell. I have FOI reports from approximately 137 police reports of, for example, my Son- In- Law disabling every piece of electrical and water infrastructure on this Estate. 

I have the medical evidence to prove that my adrenal glands have been almost shut down this year.  The specialist who oversees that testing has said I must not have any more stress or I will not survive. My body cannot withstand any further stress. I am sorry but there is no way I can be properly prepared for Trial in this time frame.

  1. [27]
    It can be seen that this email develops four themes justifying an adjournment:
    1. (a)
      That there should be a mediation prior to trial;
    2. (b)
      That Mrs Fenton has had serious health problems which prevented her from preparing for the trial;
    3. (c)
      That Mrs Fenton has more evidence of her health problems than was currently before the Court in Ms Fenton-Anderson’s large affidavit; and
    4. (d)
      That she is unable to deal with the stress related to the conduct of the proceedings and that stress was caused by the manner in which the applicants and respondents had conducted the proceedings.
  2. [28]
    On 6 July 2020, my associate responded to all parties in the following terms[7]:

Dear Parties,

His Honour will hear any application to adjourn the trial by Ms Fenton at 10.00am on 13 July.  However, Ms Fenton must be aware that if the adjournment application fails the trial will proceed.

Any application to adjourn the trial must be supported by sworn evidence.  That is, in the form of a sworn affidavit.  Amongst the issues Ms Fenton must address is why she is unable to proceed now and whether there is a reason to believe that she will be fit to participate in the trial at a time in the near future and the basis for that belief.  

Ms Fenton must serve her material by email on the other parties by 9am on Thursday 9 July.  

Any material in response and outlines of argument are to be provided by the respondent parties by 4 pm on Friday 10 July.

 All material and outlines should be copied to me.

  1. [29]
    Mrs Fenton’s only response to that email was an email sent to my associate on 7 July 2020.  It comprised an email attaching a copy of a letter said to have been provided by Mrs Fenton’s doctor, Dr David Simpson.  Mrs Fenton did not in terms seek to adjourn the trial, but that was the obvious purpose of providing the copy of the letter.  Despite the failure to tender this letter in proper form, I accept it was a genuine letter from Dr Simpson.  As will be seen, there are many other letters from him in Mrs Fenton’s affidavits.  Dr Simpson wrote:

Dear Sir,

Suzanne Fenton is suffering acute or chronic depression.  I have consulted her today by phone and feel that she is incapable of attending her legal obligations for at least 6 weeks.

  1. [30]
    With respect to Dr Simpson, I did not find this letter to be a persuasive consideration favouring adjournment of the trial:
    1. (a)
      First, the diagnosis of acute or chronic depression suggests, at the least, an uncertainty and ambiguity in the opinion. The same is true of the opinion that the doctor felt she was not fit to participate in the trial;
    2. (b)
      Second, Dr Simpson had not examined Mrs Fenton in person.  Diagnosis with the far reaching implications for the trial which he contended for on the basis of a telephone consultation gives me cause to wonder how thorough the diagnostic process was, especially as Dr Simpson is seemingly neither a psychiatrists nor a psychologist;
    3. (c)
      Third, there was no evidence at all that Dr Simpson knew anything about how the trial could be conducted to accommodate Mrs Fenton’s apparent difficulties.  In fact, she attended by telephone during the whole adjournment application and trial and argued her case with vigour over three full days; and
    4. (d)
      Fourth, Mrs Fenton did not call Dr Simpson to give any evidence nor even suggest that course during the long hearing of her adjournment application. Indeed, she never referred to his letter at all.
  2. [31]
    That letter was only one of the matters which informed the adjournment application.  Many more were to follow. 
  3. [32]
    The applicants responded to that email on Friday 10 July 2020 at 1:34pm by filing and serving by email an affidavit of Ms Fenton-Anderson addressing the adjournment application impliedly made by the provision of Dr Simpson’s letter.[8]  That affidavit become trial exhibit 17 and was relied upon on the adjournment application. The affidavit made two substantive points:
    1. (a)
      First, that although Mrs Fenton claimed to be too ill to participate in the trial, she had previously appeared in numerous proceedings involving the applicants and Mrs Fenton, including as recently as 6 May 2020; and
    2. (b)
      Second, that the applicants could not sustain the costs thrown away by any adjournment and fund representation on the next occasion.  They asserted that any costs order was unlikely to be met because the existing costs order had not been paid and there was no basis to believe Mrs Fenton had resources to pay any of those costs.
  4. [33]
    At the hearing of her adjournment application, Mrs Fenton stated that she had not received that affidavit.  It was served by email at the email address which Mrs Fenton had been using for some time prior.  It was the email address from which her communications in paragraphs [26] and [29] were sent. 
  5. [34]
    As will be seen, Mrs Fenton claimed to have had computer difficulties from the day after she sent her email attaching Dr Simpson’s letter.  While service on her email address might not have been service strictly according to the UCPR because it was unclear if Mrs Fenton ever specified her email address in a manner which permitted it to be used as an address for service of documents in the proceedings (see Rule 112(e)(ii) UCPR), ultimately little turned on that.  The material issues raised in that affidavit were exhaustively reviewed during the hearing of Mrs Fenton’s adjournment application.  Further, it is relevant that Mrs Fenton did not inform any of the parties, nor the Court, that her email had stopped working despite the looming trial and despite her history of communicating from that email address.

The first day

  1. [35]
    There were no further communications from Mrs Fenton with my associate or the Registry until the morning of the first day of the trial: 13 July 2020.  On that morning, at 9:05am she telephoned the Toowoomba registry and informed an officer of that registry to the following effect[9]:

Respondent by election has phoned, claimed to be very sick and that an ambulance has been called.  No indication given as to when she would be available.

  1. [36]
    The trial commenced at 10:28 am on 13 July 2020.  Mrs Fenton was called but did not appear.  The applicants appeared by Mr Kelso of counsel and the respondent executors by Mr Collins.  They agreed that despite Mrs Fenton’s non-appearance and non-compliance with my directions on 6 July 2020, that I should act on the basis that she had sought to adjourn the trial.  I caused exhibits 1 to 4 to be tendered, which documented most directly her conduct giving rise to the application.  Both counsel agreed I should.  I also indicated that I would rely on Mrs Fenton’s earlier affidavits filed in August 2019.  Neither counsel suggested I should not.  There was a difficulty in identifying those affidavits on the file, given an error in their filing particulars on the Court file.  Counsel briefly adjourned to consider the correction of that error I had proposed.
  2. [37]
    While they were doing so, the solicitor for the applicants and Mr Power spoke with Mrs Fenton by telephone.  On my return to the Court room at 11.40am, Mrs Fenton was attending by telephone.  She remained on the telephone and participated in the hearing (apart from adjournments) until 4:20 pm. I should make some comments about the conduct of the application.  
    1. (a)
      First, although she occasionally sounded weak and unwell on the line when she first called in and occasionally during the day, on every such occasion she quickly adopted a vigorous and determined tone.  Indeed, it was frequently difficult to stop her talking when it was necessary to do so.   On a couple of occasions, adjournments were taken when it appeared that she need some time either to rest or to attend to medical issues.  Most relevantly, except for a period of 10 minutes, the matter was adjourned from 12.51pm to 2.34 pm.  I was satisfied that Mrs Fenton, despite her urgent trip to hospital, demonstrated that she was physically capable of arguing her adjournment.  I saw no sign that depression (acute or chronic) or other ill health prevented her from vigorously articulating the reasons why the case should be adjourned;
    2. (b)
      Second, Mrs Fenton argued her adjournment application by making mixed statements of fact and submissions.  The represented parties did not object to me receiving evidence from her in this way, despite its objectionable form and the lack of notice they had received of what was said; and
    3. (c)
      Third, in the course of the argument, I endeavoured by questioning to illicit from Mrs Fenton such (unsworn) evidence as she could give which would be relevant to the adjournment application.   This was frequently difficult.  Mrs Fenton was determined to say what she wished to say, regardless of its relevance or persuasiveness on the adjournment application.
  3. [38]
    The initial period of the adjournment hearing was from 11.40 to 12.50 pm.  During that period the following matters emerged which were relevant to the adjournment application.
  4. [39]
    First, Mrs Fenton said that her computer had not been working since “about Wednesday last week”, the day she sent Dr Simpson’s letter.
  5. [40]
    Second, Mrs Fenton’s affidavits filed in the proceedings and the long affidavit of Ms Fenton-Anderson indicated that Mrs Fenton had a number of chronic medical and health problems. She spoke at length of her ill health during her submissions.  According to her, those problems could and regularly did disable her so as to prevent her from participating in Court proceedings, as she said had occurred on this occasion.  I asked her whether there was a basis to believe that, if the trial was adjourned to a future date, she would be able to participate at some future time.[10]  It was difficult to obtain a clear response on this issue.  Ultimately Mrs Fenton could not guarantee that she would be fit and healthy to attend at some future time.  Of course, no one can guarantee they will be fit on a particular day in the future.  However, the evidence before me was that Mrs Fenton had a large number of health problems which appeared to manifest themselves randomly and it was plain in my view that the events which had seemingly overtaken this trial could easily overtake any future trial date.
  6. [41]
    Third, I spent some time trying to determine what further evidence Mrs Fenton wished to put before the Court.   Ultimately, it appeared that she wished to adduce further evidence (in addition to her existing affidavits) on the following four topics:
    1. (a)
      Benefits which her daughters had received from their father in his lifetime;
    2. (b)
      Her contribution to Mr Fenton’s life (or perhaps to his estate) and her good relationship with Mr Fenton;
    3. (c)
      Her ability to maintain the Cambooya property in accordance with the requirements of the Will; and
    4. (d)
      The extent of her health problems.
  7. [42]
    It was unclear to me exactly what Mrs Fenton wished to include in her material on this subject.  I was able to clarify at least this:
    1. (a)
      On the first subject, she wished to adduce evidence to show that her daughters had received parcels of land subdivided from Cambooya which were valuable and that her younger daughter had wasted that benefit by selling the property.  She also wished to adduce evidence to prove the benefits obtained from the transfer of the funds in Mr Fenton’s superannuation account to his daughters just prior to his death;
    2. (b)
      On the second subject, the position was less clear. She asserted that her daughters accounts of the relationship were wrong (and deliberately dishonest such as to expose them to prosecution for perjury);
    3. (c)
      On the third subject, I eventually[11] established that she wished to put a series of photographs recently taken showing in her view that the property was being kept in good condition.  She also submitted that her NDIS package provided a basis to believe she could maintain the property into the future.
  8. [43]
    Fourth, I endeavoured to identify the reasons why Mrs Fenton had not filed material dealing with these matters earlier.  She variously said that:
    1. (a)
      She did not prepare material because to do so would have exposed her daughters to prosecution for perjury[12] (I saw no basis for this scurrilous allegation either in the material read in the application or ultimately on the evidence at trial);
    2. (b)
      She did not prepare material because she had been advised by her initial solicitors that all the evidence in the applicants’ initial affidavits was irrelevant (in my opinion it plainly was not)[13];
    3. (c)
      Mrs Fenton had assumed that the application was not going to be pursued by the applicants (despite her filing material in August 2019 and the application in September 2019 and subsequent steps)[14];
    4. (d)
      Mrs Fenton had assumed that there would be a mediation before the trial (despite the notice that the trial was proceeding in May 2020 at the latest)[15];
    5. (e)
      Seemingly at all times since September 2019, she has been disabled from preparing material by ill health and by the breakdown of her computer.[16]
  9. [44]
    Fifth, I explained to Mrs Fenton that the applicants were contending that they would be prejudiced by an adjournment of the trial because of the costs which would be thrown away if the trial was adjourned and that they were still waiting to be paid the costs of the disclosure application.  I asked her whether there was any way she could pay the costs owed for the disclosure application and costs thrown away of $10,000 within 28 days.  There was a long exchange about this question.  Ultimately, Ms Fenton was unable to identify any credible source from which any sum could be paid on account of costs owing or costs thrown away within any reasonable time (or seemingly at all).[17]
  10. [45]
    Finally, Mrs Fenton seemed to suggest at one point that the material she wished to file was all but ready.  The following exchange occurred:

HIS HONOUR:   So I want to know if there’s any other new point you want to make in favour of your application for an adjournment.

RESPONDENT FENTON:   The whole – the information I have on my kitchen table and downstairs on the table at the moment – I shouldn’t say that.  If my house gets broken into – it was broken into last week.  I have the information.  It just needs some words to be unscrambled on the computer if it’s back up and running sometime soon.  Or I’ll have to find an alternative, borrow somebody else’s computer to use that.  There’s not much work for me to do to pull that together, and I didn’t plan on having massive pains in all of my bones, my joints, this morning which prevented me from getting to court this morning by 8.30, have the final affidavit signed off on by the JP there at the court and to be able to lodge everything today.  So – I’m sorry, your Honour   

HIS HONOUR:   So you have an affidavit already prepared which could be provided tomorrow morning.

RESPONDENT FENTON:   I have many pages of affidavit that got scrambled.  I had it all done and the computer that I have belonged to one of our groomsmen.  He is now deceased.  And it was – and it does strange things and that’s what happened to my material.

HIS HONOUR:   All right.

RESPONDENT FENTON:   It’s all been scrambled.  I have   

HIS HONOUR:   Okay.

RESPONDENT FENTON:      re-done – I’ve re-done most of it and I definitely have all of the exhibits to go with it, but it’s just a matter of – I wish to be very careful in how I say things.  I break down every time I go to write something which involves David.  I am in a situation of very profound deep grief, because I’ve been on the run for the last two and a-half years in and out of court, being treated like I’m some sort of a criminal when I’m a devout Christian and I do – always do what’s right…

  1. [46]
    Ultimately, I could see no basis to accept that a draft affidavit was close to finalisation which addressed the matters Mrs Fenton wished to add to her existing affidavits.  And none was subsequently produced, despite that fact that I later explained that she could prepare material during the ensuing two days of the trial and seek leave to file it when it was prepared.[18] 
  2. [47]
    (It might be argued that the issue was more properly articulated as one in which an affidavit could be tendered as evidence at trial and it was for the respondents to object on natural justice grounds in the light of previous directions for filing of material.  The point seems moot, however, because leave was never sought and no affidavit or statement was ever produced by Mrs Fenton.  In any event, as will be seen in the reasons for judgment, the executor did obtain and put before the Court material evidence going to Mrs Fenton’s relationship with Mr Fenton and demonstrating the current condition of the Cambooya property, including the photographs to which Mrs Fenton referred.  This evidence favoured Mrs Fenton.)
  3. [48]
    Mr Kelso then addressed on behalf of the applicants.  He opposed the adjournment. He was brief.  He highlighted the extensive history of medical complaints of Mrs Fenton and submitted that the Court could have no confidence she would ever accept she was fit to conduct the trial if it was adjourned.  He also emphasised the financial difficulties which an adjournment would cause the applicants.  He confirmed that the solicitors were deferring fees until completion of the matter but that outlays had to be paid as the matter progressed.  He emphasised the disadvantage to the applicants of not being able to pay counsel’s fees for any adjourned trial if costs thrown away were not paid.  He emphasised that his clients had already had to sell personal items to fund the outlays.
  4. [49]
    Mr Collins briefly addressed on behalf of the executors. He also opposed the adjournment.  He touched on the issues of court resources and costs.  His primary submission was to emphasise that the role of the executors on a family provision application was to act in the interests of the estate and that both the executors, and Mr Collins as counsel, would do so.  He said:

She can have this confidence:  that both my instructing solicitor and I are experienced in these matters.  We do not just sit down and say, “That’s fine,” to the applicants.  Each of the applicants will have to give evidence and be cross-examined and be tested, having regard to the interests of the estate, so that, as your Honour identified, it is frequently the case in these matters that each of the beneficiaries aren’t separately represented, at least at the trial, and the executor assumes – executors, in this instance, assume their interests.

So that the executors take the view, consistent with that early advice to your Honour’s Associate last week that the preservation of the estate and the assets should not be further reduced or exposed simply because of an adjournment, because it appears Ms Fenton wishes to put some more evidence in.  Further, Ms Fenton has been on the telephone this morning.  My submission is she was capable of understanding, at least to the most part, what your Honour was saying and responding and had a recall of some detail.  I think your Honour’s Associate indicated previously there’s nothing to preclude her, if she so wishes, to attend by telephone.

HIS HONOUR:   Correct.

MR COLLINS:   But … the court can be assured … the executors are conscious of their duties.  I’m conscious of my duty instructed by the executors to act in the interests of the estate.  And that includes Ms Fenton’s interests.  So we don’t support any adjournment, your Honour.

  1. [50]
    Mr Collins in the first paragraph was referring to an earlier discussion between Mrs Fenton and me in which I explained to her the nature of the executor’s duty in a family provision matter and that if she was unable fully to participate in the trial, her interests would not be unrepresented.[19]
  2. [51]
    Finally, in reply it appeared that Mrs Fenton contended that there should have been a mediation.  It was not clear to me that she was alleging that the trial should be adjourned to permit that to occur.  In any event, Mrs Fenton made it clear that she would not be willing to compromise by giving up any material benefit under the Will to secure a settlement.  I considered (as Judge Richards seemingly did in September 2019) that a mediation would be futile. 
  3. [52]
    I then dismissed the application to adjourn the trial and undertook to provide reasons later, so that the trial proper could proceed, which it did.  

Relevant principles

  1. [53]
    This Court has power to adjourn a trial if it is in the interests of justice to do so. 
  2. [54]
    In Johnson v Public Trustee of Queensland as executor of the will of Brady (deceased) [2010] QCA 260 Applegarth J (with whom McMurdo P and Chesterman J agreed) observed in relation to a related discretion that:

“The exercise of the discretion … must take account of the purpose of the rules, which is “to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.”  The rules are to be applied with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of the rules.  In accordance with UCPR r 5(3), a party such as the appellant “impliedly undertakes to the court and to the other parties to proceed in an expeditious way”, and the court may impose appropriate sanctions if a party does not comply with the rules or an order of the court.”

  1. [55]
    In this context, observations made by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 are apposite.  The majority judgment (Gummow, Hayne, Crennan, Keifel and Bell JJ) noted at [98]:

Of course, a just resolution of proceedings remains the paramount purpose …; but what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.

  1. [56]
    Their Honour went on:

[99] In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. In Cropper v Smith Bowen LJ described an order for costs as a panacea that heals all. Such a view may largely explain the decision of this Court in Shannon v Lee Chun, which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh

[100] The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted. In Bomanite Pty Ltd v Slatex Corp Aust French J said of Bowen LJ's statements in Cropper v Smith:

"… That may well have been so at one time, but it is no longer true today … Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary."

[101] In Ketteman Lord Griffiths recognised, as did the plurality in J L Holdings, that personal litigants are likely to feel the strain more than business corporations or commercial persons173. So much may be accepted. But it should not be thought that corporations are not subject to pressures imposed by litigation. A corporation in the position of a defendant may be required to carry a contingent liability in its books of account for some years, with consequent effects upon its ability to plan financially, depending upon the magnitude of the claim. Its resources may be diverted to deal with the litigation. And, whilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end. The stated object in the Court Procedures Rules, of minimising delay, may be taken to recognise the ill-effects of delay upon the parties to proceedings and that such effects will extend to other litigants who are also seeking a resolution in their proceedings.

[102] The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.

[103] The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.

  1. [57]
    Their Honours went on to observe:

[112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

[113] In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

  1. [58]
    The importance which Courts ought to attach to the requirements of Rule 5 UCPR and its equivalents was recently emphasised again by the High Court.  In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 the High Court recently observed:

In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice.

  1. [59]
    The principles and policy considerations evident in those cases apply equally, not surprisingly, when the Court is invited to adjourn a matter.[20]  This was recognised, most relevantly here, by Justice Hallen sitting in Comninos v Buckley; The Estate of Comninos [2019] NSWSC 968 in a case with some similarities to this case.
  2. [60]
    The plaintiff commenced the proceedings in 28 November 2018, seeking an order for provision out of the estate of his deceased brother and related orders.  The defendant Buckley applied for the proceedings to be dismissed. The plaintiff’s solicitor did not appear when that application was called.  When the solicitor did arrive (after the defendant’s solicitor telephoned him), he explained that he had lost contact with the plaintiff.  The plaintiff’s solicitor applied for an adjournment.  His Honour refused to adjourn the matter, explaining his reasons as follows:
  1. 51In Aon Risk Services v Australian National University (2009) 239 CLR 175; [2009] HCA 27, it was said, at [103], that it will almost always be necessary to put forward an explanation for a delay if an adjournment is sought in proceedings.
  2. 52There was no real basis advanced for the adjournment other than the failure of the Plaintiff to provide instructions, which failure was said to be because of his ill health, the precise details of which ill-health, particularly in the period between 28 June and 18 July 2019, was not the subject of any evidence. Furthermore, what was said to be the medical evidence annexed to the Plaintiff’s affidavit of 6 June 2019, did not relate to the entire period after the date of the report, to which report reference has been made.
  3. 53Indeed, other than speculation by the solicitor, there was no evidence, at all, going to the reasons why the Plaintiff had not communicated with his solicitor.
  4. 54In any event, the medical conditions from which the Plaintiff was said to suffer appear to be long standing. The Court can have little confidence that during an adjournment of the hearing of the notice of motion, the Plaintiff’s suggested continuing health difficulties would be relieved. Furthermore, notably the medical report to which reference has been made, does not state that the Plaintiff is physically unfit to give instructions. Nor does it state that he is disabled from attending upon his legal representatives, or, otherwise, from answering questions which they might ask of him. Finally, the report which was dated 6 June 2019, concluded that “he is not in the position to complete all of the works for his legal matter for another 3 weeks”. That period “to complete all of the works” was granted by the Court, and additionally, a further period of almost 3 weeks had passed before the hearing.
  5. 55Although the Plaintiff’s alleged medical conditions may have made it difficult for him to present his case on his own, his asserted conditions do not appear to be such as to preclude him from preparing, or from giving instructions for his legal representatives to prepare, for the defence of the notice of motion.
  6. 56Furthermore, there was no evidentiary basis to enable me to conclude that there was any reasonable prospect of the Plaintiff being able, or willing, to give instructions to his solicitors during the period of any adjournment, if an adjournment were granted. He has had since about 9 April 2019, that is, over three months, to provide detailed instructions to his solicitors. Even before that time, the matter had been adjourned, several times, at his request.
  7. 57As well, no satisfactory explanation, in my opinion, was given for the making of the application for an adjournment at such a late stage, particularly in circumstances where the proceedings had been case managed, and where the Defendant’s notice of motion had been on foot for some time. By way of comparison, since being served with the Summons, the Defendant has conscientiously attended to defend the proceedings.
  8. 58Finally, in light of the Plaintiff’s evidence about his financial circumstances, I considered that the prejudice to the Defendant could not be alleviated, at least in part, by any order for costs.
  9. 59In determining whether to adjourn these proceedings, the Court, like parties and their legal representatives, are bound by the principles set out in Part 6 of the Civil Procedure Act 2005 (NSW), including s 56(1) which provides that “the overriding purpose of the Act and the rules of court in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings." Of course, the Court is also required to follow the dictates of justice as set out in s 58 of the Civil Procedure Act and to take into account the provisions of ss 56 and 57. The dictates of justice require the Court to also have regard to the interests of the Defendant, who opposed the adjournment, and, who, understandably, would like to have the proceedings, which she says cannot succeed, resolved as expeditiously as possible and at the least possible cost.
  10. 60I also remember the effect of case management sometimes may be the cause of disadvantage to a party, in order to promote the community’s interest in the delivery of justice. Here, effectively, half a day in the running list had been set aside for the hearing of the Defendant’s notice of motion, after the proceedings had been on foot for nine months. If the hearing was adjourned, another half day of Court time would need to be found at some future date.
  11. 61In the circumstances, the Plaintiff’s application for the adjournment was refused as I was not persuaded that it was in the interests of justice to grant the adjournment.
  1. [61]
    In considering an adjournment application from a litigant in person, of course, the authorities recognise that it can be appropriate to grant adjournments to permit a litigant in person to address matters which he or she had not appreciated, or to give him or her more time to respond to issues raised (as compared to the time a represented party might be granted).[21]  However, adjournments are not for the asking for unrepresented parties.  The circumstances of the particular case must always be considered.  Also, a trial judge must bear in mind that a represented party is not to be materially disadvantaged just because an unrepresented party is involved.  The High Court recently restated that proposition in Nobarani v Mariconte (2018) 265 CLR 236. While on the facts of that case, the High Court concluded that the appellant had been denied procedural fairness by the refusal of an adjournment, that conclusion was not reached because of his unrepresented status but because, said the Court, any party in an equivalent position would have been entitled to an adjournment.  The Court held (approving a well-known passage from Rajski v Scitec Corporation Pty Ltd (unreported, NSWCA, Full Court, 16 June 1986)):

[47] This conclusion is not based upon reasoning that a litigant in person is entitled to be relieved from rules that would apply to a party who is represented. In this case, no legal representative would reasonably have been refused an adjournment if presented with only three clear business days to prepare for a trial of proceedings to which their client had not yet been joined and in which their client had not been the subject of pre-trial orders for preparing and filing a defence, preparing and filing evidence, issuing subpoenas, and locating and confirming availability of witnesses. As Samuels JA said in a passage that has been relied upon on many occasions:

“the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement …An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.”

The adjournment should be refused

  1. [62]
    Bearing in mind the above authorities, I concluded that the adjournment application should be refused.  The following matters supported that conclusion in my opinion.

Capacity to participate in the trial

  1. [63]
    I start by recognising that in many cases, where a litigant in person is overtaken by ill health at the last minute such that they are unable properly to represent themselves in the trial and no-one else is available to represent them, this would be a powerful factor favouring an adjournment.  However, in my respectful view, neither of the two conditions identified were established by Mrs Fenton, despite the very significant latitude she was given to develop her arguments and make unsworn statements on the telephone during the hearing of her adjournment application.
  2. [64]
    As to the first matter, despite the medical emergency which Mrs Fenton said had overtaken her, it appeared to me during the course of the adjournment hearing that she was able to argue her case with vigour and determination.  Whatever might have been her health status on that day, she was in my view not materially constrained by it in intellectual acuity or persistence. 
  3. [65]
    As to the second matter, it was simply not the case that she would be unrepresented at the trial if she did not attend or could not attend fully.  As I have already explained, Mrs Fenton was a beneficiary under the Will.  The duty of the executor and his legal representatives is reasonably to uphold the Will.  Mr Collins made clear that this duty would be carried out by both the executors and by him as counsel.  I had no reason to doubt that would be so.  Not only is Mr Collins a person of some experience generally and in this area in particular, but it was clear to me from the material that the executor had up to that point undertaken his duties with patience and diligence.  This is a factor which significantly distinguishes this situation from the ordinary inter partes case. 
  4. [66]
    The proposition that an executor must act reasonably to uphold a Will is well established.  A corollary of this proposition is that it is generally unnecessary and undesirable for a beneficiary to be separately represented unless there is some good reason shown, and that position is reinforced by refusing costs to a beneficiary which unnecessarily participates in the trial or incurs costs in defending the proceeding.[22] Mrs Fenton appears to have taken the view that she had to actively participate in the trial on her own account because the executor was partial against her.  No credible evidence was put before me to make good that proposition in the adjournment application (nor was it made out by the conduct of the subsequent trial).

Health problems likely to arise in the future in any event

  1. [67]
    Even if Mrs Fenton was in fact physically unable to participate in the trial sufficiently to advance her interests, that consideration alone did not justify adjourning the trial.  Bearing in mind the interests of the executors and the applicants in timely and cost-effective resolution of a dispute, I would need to be satisfied that there was some reasonable prospect that the trial would not be affected by a sudden health crisis for Mrs Fenton if adjourned to some future date.  Mrs Fenton could not satisfy me of that.  Further, her many and varied health problems, chronic and acute, provide an objective basis for concluding that there was a real prospect of any future trial being frustrated by an onset of ill health.  In the words of Justice Hallen: “…the medical conditions from which [Mrs Fenton] was said to suffer appear to be long standing. The Court can have little confidence that during an adjournment of the hearing of the notice of motion, the Plaintiff’s suggested continuing health difficulties would be relieved.”

The impact on delay on the others  

  1. [68]
    The previous point has added significance in a family provision application involving a modest estate.  Delay adds to costs of the proceedings.  It also drags out the emotional strain of the litigation which involves tension between a parent and children.  It prevents the parties from being able to get on with their lives.  It is also of some, albeit modest, relevance that the trial has come on for hearing in a circuit registry of the Court where sittings, though frequent, are not constant.  An adjournment of this trial would have had the consequence of wasting the three days allocation and absorbed three other days in future circuit sittings, to the disadvantage of other litigants in the Toowoomba district.

No credible excuse for failing to file material

  1. [69]
    Apart from her ill health on the day, Mrs Fenton also sought an adjournment to be able to put on further affidavit material.  However, I did not find her submissions in this regard a persuasive argument favouring an adjournment for the following reasons:
    1. (a)
      Mrs Fenton had been aware that she was required to file her evidence in opposition to her daughters’ claims since January 2019;
    2. (b)
      Mrs Fenton was told to put on such evidence by Judge Koppenol in July 2019 and she put on substantial material in August 2019. 
    3. (c)
      Mrs Fenton must have known the matter was proceeding (if she ever was in any doubt about that) when the applicants pursued successfully their application for disclosure;
    4. (d)
      Mrs Fenton was not able to give any credible explanation in those circumstances as to why she had not taken up the opportunity she had been afforded since January 2019 to put on the material she wanted to rely upon at trial.   Her explanations that she feared exposing her daughters to perjury and that she was advised by a solicitor that her daughters’ evidence was so defective as to be irrelevant were not credible. 
  1. [70]
    Nor did the various matters she raised justify inaction over that whole period.  I note in that regard that it was a little difficult, in any event, confidently to rely on Mrs Fenton’s explanations for why she had failed to file all the material she wished to rely on by the arrival of the trial date.  I refer to the transcript in paragraph [45] above. 
  2. [71]
    Mrs Fenton was quite capable of preparing the six affidavits filed in August 2019, despite her chronic health problems.  I am not persuaded that her various health and technology problems were such as to prevent her from putting on further evidence if she had attended with any diligence at all to preparing for the trial.

Proposed further evidence unlikely to be material  

  1. [72]
    I refer to my summary of the further evidence which I understood Mrs Fenton wished to lead set out in paragraphs [41] to [42] above.  As to those matters:
    1. (a)
      The circumstances of the Superannuation Account and the sub-divided properties were already fully raised on the material.  Further, it was not disputed that the applicants received both benefits;
    2. (b)
      The relationship between her and Mr Fenton was a relevant consideration.  However, it did not seem to me to be likely to be a central consideration.  Even if I accepted the applicants’ evidence of the distant relationship they alleged, there was evidence that Mrs Fenton was dependent on Mr Fenton and that, at least when he made the Will, their relationship was such as to cause him to want to benefit her substantially (and in any event, the executor went to considerable lengths at the trial to put before me cards sent by Mr Fenton to Mrs Fenton which were the primary evidence of a close relationship which she raised during the trial);
    3. (c)
      As to the maintenance of Cambooya, I saw no reason why the photographs which she wished to rely on and her NDIS Plan could not be put before the Court and indeed they were by the executor in his case; and
    4. (d)
      Her health problems were already fully covered in the applicants’ own material.

Inability to pay costs thrown away

  1. [73]
    A key proposition established by Aon was that amendments (and consequential adjournments) were not to be granted for the asking where the party seeking the indulgence was able to pay legal costs thrown away.  A fortiori, where the party seeking the indulgence is unable to do so.  Mrs Fenton was not able to identify any credible source of funds to meet the costs thrown away by an adjournment in the form of outlays which would have to be paid.  This was a very substantial and concrete prejudice to the applicants.  That is particularly so give the limited financial circumstances of both applicants.  This factor told materially against granting the adjournment, particularly where an earlier costs order made because of Mrs Fenton’s failure to put on relevant material or co-operate with the executor to do so was also unpaid and where Mrs Fenton’s separate representation did not appear to be necessary in any event.

Failure to comply with directions

  1. [74]
    Although a relatively small matter, it is also worth noting that Mrs Fenton did not make any attempt at all prior to the morning of trial to comply with my directions as to the manner for making an adjournment application.  Although she also relied on being overtaken by events on the morning of the 13th, the fact remains that she made no effort prior to that time to comply.  The purpose of those directions was to give the other parties the opportunity properly to respond to what was inevitably going to be a contested application.  Self-represented parties are entitled to procedural fairness, but so are represented parties.   Mrs Fenton gave no explanation as to why she did not attempt to comply.  Merely sending the letter from Dr Sullivan (defective though it was in form and content) did not represent any real attempt properly to make the application as directed.

Conclusion

  1. [75]
    For these reasons, Mrs Fenton’s adjournment application was dismissed.  I reserved the question of costs. 

Footnotes

[1] See de Groot & Nicol Family Provision in Australia (5th Edn) at 6.6 to 6.8

[2] Exhibit 1 in the trial

[3] Trial exhibits 11.1 – 11.6

[4] Trial exhibit 17  para. 4(a)

[5] TS1-27.15

[6] Adjournment exhibit 1

[7] Exhibit 1 on the adjournment application

[8] Exhibit 4 on the adjournment application

[9] Exhibit 3 on the adjournment application

[10] TS1-13.39 to .47; TS1-15.3 to .6; TS1-15.43 to 1-16.8; TS1-25.17 to .32

[11] See TS1-26.45 to TS1-28.24

[12] TS1-18.7 to .19

[13] TS1-18.30

[14] TS1-19.32 to .45

[15] Ibid.

[16] TS1-21.35 to .39

[17] TS 1-31.4 to 1-35.3

[18] TS1-75.5 to 1-76.38

[19] TS1-26.7 to .41

[20] In this State, for example, Commissioner of the Australian Federal Police v Hart [2016] QCA 215 at paragraphs [388] – [395]

[21] Sullivan v Department of Transport (1978) 20 ALR 323 at 343; DPP v Ozakca (2006) 68 NSWLR 325

[22] See the reference in footnote 1 above.

Close

Editorial Notes

  • Published Case Name:

    Fenton-Anderson & Anor v Power & Anor

  • Shortened Case Name:

    Fenton-Anderson v Power

  • MNC:

    [2020] QDC 293

  • Court:

    QDC

  • Judge(s):

    Porter QC DCJ

  • Date:

    20 Nov 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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