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Hartley v Hartley QCA 96
SUPREME COURT OF QUEENSLAND
Hartley v Hartley  QCA 96
SHANE MICHAEL HARTLEY AS EXECUTOR OF THE WILL OF SHIRLEY LILLIAN HARTLEY (DECEASED)
CRAIG ANDREW HARTLEY
Appeal No 776 of 2022
DC No 27 of 2017
Court of Appeal
Application for Extension of Time/General Civil Appeal
District Court at Cairns –  QDC 323 (Morzone QC DCJ)
27 May 2022
10 May 2022; further written submissions received 24 May 2022
Morrison and Bond JJA and Boddice J
1. The further hearing of the present application is adjourned to a date to be fixed, costs reserved.
2. As soon as is practicable, the parties must take all reasonable steps to obtain from the primary judge, his order finally disposing of the matters in issue on the application before him.
3. The applicant before this Court must, within 7 days after the order is made by the primary judge, either:
(a) notify the respondent before this Court that it does not intend to appeal; or
(b) file and serve his notice of appeal from the order made by the primary judge.
4. In the event that the applicant before this Court takes the course referred to in 3(a):
(a) the parties must within a further 7 days file in this Court their submissions as to the orders which should be made in relation to the present application, including as to costs, such submissions being limited to 4 pages; and
(b) the application will be determined on the papers.
5. In the event that the applicant before this Court takes the course referred to in 3(b):
(a) The appeal record for that appeal must comprise:
(i) The appeal record in the present application before the Court;
(ii) The written submissions received in respect of the present application;
(iii) The transcript of the argument which has already occurred on the present application;
(iv) Such supplementary volumes as will remedy the inadequacies in the appeal record in the present application and which will be relevant to the issues raised by the notice of appeal and the orders sought by it.
(b) The present application and the appeal will be listed for hearing before a Court comprised of Morrison JA, Bond JA and Boddice J on a date to be fixed.
6. Liberty to apply.
SUCCESSION – FAMILY PROVISION – PROCEDURE – ORDERS AND OTHER PROCEDURAL MATTERS – GENERALLY – where the deceased bequeathed her estate to three of her four sons – where the deceased made no provision for the respondent before this Court – where the respondent sought orders pursuant to s 41 of the Succession Act 1981 (Qld) for adequate provision to be made out of the deceased’s estate for proper maintenance and support – where the primary judge published reasons explaining his decision for concluding that he would make an order that further provision be made to the respondent to the sum of $150,000 – where the primary judge invited further submissions as to the form that order would take – where the applicant before this Court appealed against the reasons of the primary judge – where the applicant brought an application for an extension of time within which to appeal – where in the course of hearing the application and appeal it become apparent that the primary judge had erred – where in the course of hearing the application and appeal it became apparent that no order had been made by the primary judge – where the Court invited further submissions addressing the course which the Court should take
District Court of Queensland Act 1967 (Qld), s 3, s 118(2)
Evidence Act 1977 (Qld), s 92
Succession Act 1981 (Qld), s 41
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 748
Australian Competition and Consumer Commission v Valve Corporation (No 4)  FCA 382, cited
DJL v The Central Authority (2000) 201 CLR 226;  HCA 17, cited
Golosky v Golosky  NSWCA 111, considered
House v The King (1936) 55 CLR 499;  HCA 40, applied
Pizzino v Pizzino & Anor  QSC 35, considered
Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd (2020) 3 QR 494;  QCA 41, considered
Singer v Berghouse (1994) 181 CLR 201;  HCA 40, discussed
Smith v New South Wales Bar Association (1992) 176 CLR 256;  HCA 36, cited
St Clair v Timtalla Pty Ltd  QCA 304, considered
Texas Co (Australasia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR 382;  HCA 9, cited
D J Topp for the applicant/appellant
T J Naylor and for the respondent
Smithfield Law for the applicant/appellant
Maurice Blackburn Lawyers for the respondent
- THE COURT: Shirley Lillian Hartley (“the deceased”) died on 4 June 2016. She was survived by her four sons:
- (a)Shane, the present applicant, aged 52 at the time of the primary judge’s decision;
- (b)Peter, aged 51;
- (c)Craig, the present respondent, aged 49; and
- (d)Damien, aged 45.
- Her last will had been made on 2 March 2015 at a time when she was extremely ill with cancer and facing a poor prognosis. By that will, she bequeathed three house properties to Shane, Peter and Damien; left a car to Shane; divided any residue of her estate between Shane, Peter and Damien, but made no provision for Craig. The explanation for her having taken that course appeared in the statutory declaration which she made on the same day she executed her last will.
- She declared that:
“3. I have purposefully left Craig Andrew Hartley out of my Will and do not wish him or his girlfriend to benefit from my estate.
- During his lifetime he had had plenty of money given to him at all times. I have purchased him and his girlfriend a vehicle recently as well.
- He is currently addicted to the drug ICE and resides in a hovel with his girlfriend who is also on drugs and a chronic alcoholic.
- Craig has recently been in prison for his crimes which include breaking and entering, drug possession and assault. I have a restraining order on him.
- He has recently broken into my home and stolen from me which is why I took the restraining order out on him.
- I do not wish him to benefit at all from my estate as he is a big disappointment to me and has done nothing to help me during my illness but cause me a great deal of stress.
- He has recently stolen $1600.00 from me and my camera which has all my holiday photos on it from what would have been my last holiday with my brother before I die.
- I have had the opportunity of taking legal advice in this area of law and have been advised that unfortunately there is no sure [way] that I can ensure that Craig does not take any benefit from my estate.
- I am hopeful that a statutory declaration written by me just prior to my death will deter the court from making any order which will allow Craig and his girlfriend to spend my hard earned money on drugs to destroy not only their lives but their daughters as well.”
- She expressed similar sentiments orally to other persons.
- On 3 March 2017, Craig filed an originating application which sought orders pursuant to s 41 of the Succession Act 1981 (Qld) that adequate provision be made out of the deceased’s estate for his proper maintenance and support.
- Section 41 of the Act relevantly provides:
“(1) If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.
- (2)The court may—
- (a)attach such conditions to the order as it thinks fit; or
- (b)if it thinks fit—by the order direct that the provision shall consist of a lump sum or a periodical or other payment; or
- (c)refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable.”
- The observations by Mullins J (as her Honour then was) in Pizzino v Pizzino & Anor  QSC 35 at - are a sufficient summary for present purposes of the approach to be taken in relation to such applications:
“There was no issue between the parties about the application of the two stage process that s 41(1) of the Act requires the court to undertake, as explained in the joint judgment of Mason CJ, Deane and McHugh JJ in Singer v Berghouse (1994) 181 CLR 201, 208-209 (Singer), as approved by Gleeson CJ and Gummow and Hayne JJ in Vigolo v Bostin (2005) 221 CLR 191 at ,  and - (Vigolo).
The first stage of the process or the jurisdictional question is one of fact determined at the date of the hearing, even though it involves the making of value judgments on whether the applicant has been left without adequate provision for his proper maintenance and support, as at the date of the deceased’s death: Singer at 209-211. The factors that will be considered on the jurisdictional question include the applicant’s financial position, the size and nature of the estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate claims on her bounty: Singer at 210. The nature of the inquiry undertaken by the court on the jurisdictional question was analysed in Hills v Chalk  QCA 159 at - (per Keane JA), - (per Muir JA) and  (per Fraser JA).
If it is necessary to proceed to the second stage of the process, it involves similar considerations to the jurisdictional question (Singer at 210) and s 41(1A) of the Act is applicable. In addition to the matters specified in s 41(1A) of the Act, the respondents and the applicant’s sons also rely on the application of s 41(2)(c) of the Act.
In determining the second stage, the court exercises its discretion on whether to make an order in favour of the applicant by reference to the circumstances as they exist at the date of the order: White v Barron (1980) 144 CLR 431, 444.
The jurisdiction under provisions such as s 41(1) of the Act does not entitle the court to rewrite the will in accordance with its own ideas of fairness or justice: Hughes at 146.”
- The originating application came on for trial before the primary judge on 12 and 13 May 2021. By that time, the primary judge found that Craig had been drug free for 10 months.
- On 14 December 2021, the primary judge published written reasons for judgment explaining his reasons for concluding that he would make an order that further provision be made for the proper maintenance and support of the applicant in a specific bequest of $150,000, leaving the residue of the estate to be shared equally between the remaining beneficiaries. Some complexity attended the formulation of the terms of the order because the net value of the estate was only about $1,200,000 and the only significant assets in the estate were the three houses which had been left to Shane, Peter and Damien. The primary judge had determined that he required further submissions to be made before settling the terms of the order to be made to give effect to his intention to order a pecuniary provision in favour of the applicant before him. The only order made by the primary judge at the time he published his reasons was:
“I will hear further submissions from the parties about the form of order consistent with this decision, and any application as to costs.”
- The respondent before the primary judge posted to the Court of Appeal a notice of appeal from the primary judge’s decision and the notice was received on 19 January 2022. He brought an application for an extension of the time within which to appeal. The orders sought by the application before this Court were:
“1. That, pursuant to rule 748 of the UCPR, that the Court of Appeal orders that the appellant be granted an extension of time to file his Notice of Appeal to 19 January 2022.
- That costs of and incidental to this application be costs of [that appeal].
- Any such further order as this Honourable Court may seem appropriate.”
- The notice of appeal which been received on 19 January 2022 contended that there was error in the decision to order a pecuniary provision in favour of the applicant before the primary judge and sought to reverse the decision made by the primary judge. The principles which govern appellate review of discretionary decisions apply to any appellate review of either stage of the process which s 41 of the Succession Act requires a primary judge to undertake. That much is axiomatic in relation to the second stage because it explicitly involves an exercise of discretion. And although the decision at the first stage involves the making of a value judgment to decide a question of objective fact, the High Court held in Singer v Berghouse that the same principles should apply to decisions made at that stage, approving the application in that context of observations made by Kirby P (as his Honour then was) in Golosky v Golosky  NSWCA 111 at 8:
“Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometime at least, with a burden of costs upon the estate which should not be encouraged.”
- The appeal record prepared for the hearing of the application before this Court was manifestly inadequate. It contained only the affidavit evidence of the applicant before the primary judge; it omitted the affidavit evidence on which the respondent before the primary judge had relied; it omitted the transcript of the first day of the hearing before the primary judge in which deponents were cross-examined; and it omitted – so this Court assumed – evidence of the occurrence of the events which had been contemplated by the order made by the primary judge and the outcome of those events, namely an order consistent with the primary judge’s reasons and which also disposed of any application made as to costs.
- By the time the present application came before this Court for hearing, the written submissions of both sides had engaged with the merits of the argument that the primary judge had erred in deciding to order a pecuniary provision and also with the argument concerning an extension of time. Both sets of submissions had proceeded on the basis that the primary judge had made an order capable of being appealed.
- Oral argument before this Court took place, during which two matters concerning the primary judge’s reasoning became clear.
- First, the primary judge had found that the matters raised by the deceased in the statutory declaration and uttered to others, went to the deceased’s reasons for excluding Craig, and were not evidence in themselves. That conclusion was certainly correct in relation to the evidence as to the statements which she had made to others. But it was wrong in relation to the statutory declaration. The statutory declaration had been admitted pursuant to s 92 of the Evidence Act 1977 (Qld) and, accordingly, was to be regarded as proof of the truth of its contents. Although the primary judge accepted that many of the matters dealt with by the statutory declaration were made out by other evidence, he also found that not all of them were. For example, he found – wrongly because the statutory declaration amounted to such evidence – that there was no evidence that the deceased had taken out a restraining order on Craig, or of any reason for doing so. The result was that the primary judge had made an evidentiary error which meant that he must have failed to take into account at least some facts relevant to the exercise of his discretion on both stages of the test. That would amount to discretionary error within the meaning of House v The King (1936) 55 CLR 499 at 504-505.
- Second, the primary judge treated the question of the existence of disentitling conduct within the meaning of s 41(2)(c) as a question which should be considered at the first stage. That was an error in the application of legal principle. The question whether a judge should refuse to make an order in favour of any person because the judge finds their character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose circumstances are such as to make such refusal reasonable, is, in terms, part of the second stage enquiry. Undoubtedly evidence relevant to that enquiry would also be relevant to the first stage enquiry, but at the first stage such evidence was to be considered in accordance with the test laid down for that stage and not by the application of the statutory terms applicable to the second stage. That too would amount to discretionary error within the meaning of House v The King.
- Argument before the Court addressed the mechanism by which the Court could be put in the position of exercising the discretion under s 41 of the Succession Act in the event that it concluded that by reason of demonstrated errors the discretion of the primary judge had miscarried and that the Court of Appeal should exercise the discretion afresh. Argument addressed the possibility that this Court might have to require the inadequate appeal record to be supplemented and then might have to make directions giving the parties an opportunity to make supplementary submissions in writing addressing any considerations relevant to such an exercise of discretion which had not already been made by reference to the findings made by the primary judge.
- During the course of that argument, the Court enquired of the parties as to the form of order which the primary judge had ultimately made. It was then that it became apparent that the Court’s assumption that such an order had been made was incorrect. The Court was informed that no order consistent with the primary judge’s reasons had yet been made. The Court pointed out that in that event the application may be regarded to have been misconceived. Time for bringing an appeal which enabled the Court to address any error of discretion made by the primary judge in ordering provision under s 41 would only begin to run when such an order was made.
- It was apparent that neither side had appreciated that point.
- The Court adjourned the application before it and gave the parties time to file written submissions addressing the course which the Court should then take.
- Notwithstanding the foregoing recitation and the view expressed by this Court concerning the problem created by the absence of any order, the applicant’s counsel has filed written submissions arguing that the primary judge had made a decision capable of being appealed, because of what he had written in his reasons. That argument is misconceived for the following reasons:
- (a)The appeal right in this case is that conferred by s 118(2) of the District Court of Queensland Act 1967, namely a right conferred on a party who is dissatisfied with a final or interlocutory judgment of the District Court in its original jurisdiction.
- (b)The term “judgment” is defined in s 3 of that Act to include “a judgment, order, or other decision or determination of the court.” The terms in which the appeal right has been conferred are not apposite to be construed as a reference to anything other than the formal operative judicial act which disposes of or deals with the particular proceeding or aspect of the proceeding.
- (c)The primary judge had not made such a judgment. Although his reasons expressed his conclusion and that conclusion was adverse to the present applicant, the primary judge has not yet made a formal operative judicial act which adversely affects the present applicant’s rights. He expressly contemplated hearing further submissions before he did so. An expression of a conclusion in reasons published in advance of a final order does not affect rights: cf Australian Competition and Consumer Commission v Valve Corporation (No 4)  FCA 382 per Edelman J at .
- (d)The present applicant relies on St Clair v Timtalla Pty Ltd  QCA 304, in which McMurdo P rejected a submission that time did not commence to run from the time a trial division judge pronounced an order because the trial division judge had adjourned the question of costs to receive further submissions on them. What the applicant has not understood is that in that case the primary judge had pronounced a final order on the merits (namely that the claims were dismissed). That final order having been made, the time within which an appeal could be commenced had begun to run. St Clair v Timtalla Pty Ltd does not the assist the applicant.
- (e)Nor does Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor  QCA 41. That was a case which recognised that subject to a grant of leave, an appeal would lie to the Court of Appeal from orders made in the Planning and Environment Court allowing an appeal against the refusal of a development application and adjourning that appeal so that conditions of a proposed development permit can be formulated, or even from an order adjourning an appeal to allow time for the formulation of the conditions on which the appeal would be allowed and the development approval granted. But the relevant appeal right was conferred by s 63 of the Planning and Environment Court Act which permitted a party to “appeal a decision in the proceeding, but on the ground of error or mistake in law or jurisdictional error”. It is not appropriate to translate the practice recognised in that context to the present context in which the language conferring the appeal right is different. And in any event, as Fraser JA explained at , that case concerned an order which could be regarded as adversely affecting the appellant’s rights, and there is no such order in the present case.
- The usual response to an application as misconceived as that made in the present case would be to dismiss the application with costs. That is certainly the response which the respondent invites this Court to take. Had the misconception become apparent at or before the beginning of oral argument, this Court may well have made such an order. But in this unusual case neither side realised the problem until the Court was informed of the true position and then pointed out the problem itself. And by that time, it had become apparent that the primary judge had made the errors identified above. Given that the present applicant (the respondent before the primary judge) may still appeal once an order is obtained, it would seem to be inconsistent with r 5 of the Uniform Civil Procedure Rules not to make orders which would enable some advantage to be taken of the work done by the parties and by the Court in relation to the argument which has already occurred.
- Accordingly, the course we will take is to treat the misconceived application for an extension of time within which to appeal, as an application to this Court for directions in relation to the appeal which may be made in relation to the order to be made by the primary judge.
- We acknowledge that because the primary judge has not yet made an order, his Honour is not yet functus officio. His Honour contemplates hearing from the parties further before making a final order. It would be open to the primary judge, of his own motion, or upon application by a party, to reopen the proceeding before him to correct the errors which we have identified and to exercise his discretion on a proper basis, because it has long been the law that a court may review, correct or alter its judgment at any time until its order has been perfected: Texas Co (Australasia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR 382, at 457; Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265; DJL v The Central Authority (2000) 201 CLR 226 at 244.
- The Court makes the following orders:
- The further hearing of the present application is adjourned to a date to be fixed, costs reserved.
- As soon as is practicable, the parties must take all reasonable steps to obtain from the primary judge, his order finally disposing of the matters in issue on the application before him.
- The applicant before this Court must, within 7 days after the order is made by the primary judge, either:
- (a)notify the respondent before this Court that it does not intend to appeal; or
- (b)file and serve his notice of appeal from the order made by the primary judge.
- In the event that the applicant before this Court takes the course referred to in 3(a):
- (a)the parties must within a further 7 days file in this Court their submissions as to the orders which should be made in relation to the present application, including as to costs, such submissions being limited to 4 pages; and
- (b)the application will be determined on the papers.
- In the event that the applicant before this Court takes the course referred to in 3(b):
- (a)The appeal record for that appeal must comprise:
- The appeal record in the present application before the Court;
- The written submissions received in respect of the present application;
- The transcript of the argument which has already occurred on the present application;
- Such supplementary volumes as will remedy the inadequacies in the appeal record in the present application and which will be relevant to the issues raised by the notice of appeal and the orders sought by it.
- (b)The present application and the appeal will be listed for hearing before a Court comprised of Morrison JA, Bond JA and Boddice J on a date to be fixed.
- Liberty to apply.
Appeal Record (AR) at 50-51.
- Published Case Name:
Hartley v Hartley
- Shortened Case Name:
Hartley v Hartley
 QCA 96
Morrison JA, Bond JA, Boddice J
27 May 2022
- Selected for Reporting: