O'Brien v Public Trustee of Queensland
[2003] QDC 427
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- Unreported Judgment
- O'Brien v Public Trustee of Queensland[2003] QDC 427
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O'Brien v Public Trustee of Queensland[2003] QDC 427
O'Brien v Public Trustee of Queensland[2003] QDC 427
DISTRICT COURT OF QUEENSLAND
CITATION: | O'Brien v Public Trustee of Queensland [2003] QDC 427 |
PARTIES: | KATHARINA O'BRIEN Applicant and PUBLIC TRUSTEE OF Queensland (as Administrator of the Will of Fritz Koblitz, deceased) Respondent |
FILE NO: | 81/03 |
DIVISION: | Civil |
PROCEEDING: | Application |
DELIVERED ON: | 31 July 2003 |
DELIVERED AT: | Southport |
HEARING DATE: | 4 July 2003 |
JUDGE: | Alan Wilson SC DCJ |
ORDER: | I direct that the application be heard and determined notwithstanding it was brought outside the time limit prescribed by s 41(8) of the Succession Act, 1981 Further order that the matter be placed on the Callover List with priority |
CATCHWORDS: | SUCCESSION – FAMILY PROVISION – PRACTICE – EXTENSION OF TIME – TIME FOR MAKING APPLICATION – where claim by applicant that testator failed to make sufficient provision for her as his de facto spouse – where limitation period for bringing action had expired – whether satisfactory explanation for delay in bringing proceedings – when application for direction under s 41(8) may be made SUCCESSION – FAMILY PROVISION – SUMMARY JUDGMENT – claim for Family Provision brought out of time – whether respondent may apply for summary judgment – whether application should be summarily dismissed Succession Act 1981 (Qld) s 41(8) Cases considered: Adams v Schofield (1981) CA (UK)Bird v Bird (2002) QSC 202Brown v Holt (1961) VR 435Christensen v DPP (2003) 1 Qd R 496Clayton v Aust (1993) 9 WAR 364Davies v Pagett (1986) 70 ALR 793 at 798-9 (Federal Court FC) General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Holman v McClelland & Ors (2003) QSC 110Jess v Scott (1986) 12 FCR 187 at 190 (Federal Court FC)Kosto Kanellis v Allen (1974) VR 596 at 607 (FC)Neilsen v Peters Ship Repair Pty Ltd (1983) 2 Qd R 419Randel v Brisbane City Council (1984) 2 Qd R 276Re Estate of Nichos (dec’d); Grigoriou v Nitsos (1999) WASCA 42Re Prakash (1981) Qd R 189Re Terlier (1959) QWN 5 Re Traeger (1948) SASR 248Re Walker (1967) VR 890Warren v McKnight (1996) 40 NSWLR 390 |
COUNSEL: | Mr D R M Murphy for the applicant/respondent Mr M K Conrick for the respondent/applicant |
SOLICITORS: | Official Solicitor for the Public Trustee of Queensland McDonald Chesters |
- [1]By an originating application filed 4 March 2002 the applicant Ms Katharina O'Brien seeks further and better provision out of the estate of Fritz Koblitz (deceased), under s 41 of the Succession Act 1981. That application was brought out of time and the Public Trustee, Administrator of Mr Koblitz’s estate, has applied for an order that it be “...struck out on the grounds that it was filed more than nine months from the date of death of the deceased and the applicant has not sought leave of the Court as required by s 41(8)…”.
- [2]S 41(8) provides:
Unless the Court otherwise directs, no application shall be heard by the Court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within nine months after the death of the deceased…
Mr Koblitz died on 15 June 2000 so the nine month period ended on 15 March 2001. Ms O'Brien’s originating application was not filed, then, until a date almost one year after the time limit expired.
- [3]Mr Koblitz’s last will was dated 17 April 1969, and the executor he appointed died before him. The Public Trustee was subsequently appointed to administer his estate. He was survived by two adult daughters, who are the sole beneficiaries named in the will. Ms O'Brien asserts in an affidavit in support of her application filed on 27 June 2002 that she lived in a de facto marriage with Mr Koblitz from a date prior to July 1995 up to and including the time of his death – a claim which, if proven, would make her a person entitled to apply for provision from his estate.
- [4]The action has not been advanced in accordance with the procedure required under Practice Direction No. 8 of 2001, which envisages that the parties will work out a timetable for the exchange of affidavits, and a process for alternate dispute resolution and, ultimately, file an order reflecting their agreement about those matters; or, apply to the Court for resolution of any aspects of it about which they cannot agree. Rather, over 30 affidavits have been filed by both sides from a large number of deponents addressing, in the greater part, the question whether or not the applicant and the deceased were actually cohabiting like a married couple during the period Ms O'Brien asserts or, in fact, living separately and apart, with occasional visits. Affidavits have also been filed about the applicant’s financial circumstances, and the size of the estate and steps which have been taken in its administration.
- [5]On 3 March 2003 the parties consented to an order containing a timetable for the filing of further affidavits on behalf of each, dispensing with any alternate dispute resolution procedures, and directing the application be dealt with on a priority basis. On 1 July 2003 the Public Trustee filed the application mentioned earlier, and the applicant cross-applied for an order that the matter be placed on the call-over list with priority.
- [6]As at March 2003 the net assets of the estate had a value of about $334,000. In her original affidavit filed 27 June 2002 the applicant said she was 76, owned nothing more than some personal effects and a motor vehicle, was liable for a debt which considerably exceeded the value of her small savings, and supported herself solely from an aged pension, and some rental assistance. The deceased’s beneficiaries, his adult daughters, have not filed material about their circumstances.
- [7]A practice has developed in this jurisdiction under which an applicant who is out of time nevertheless files only one originating application, seeking both primary relief and the leave required under s 41(8). The practice is reflected in a series of Practice Directions commencing with Supreme Court Direction No. 7/1982 and continued in the most recent, No. 8/2001.
- [8]Little has been said, in the cases, about the point in the proceedings when the limitation period can or should be resolved. In re Prakash[1] Master Lee (as his Honour then was) accepted that the analogous provisions of the previous Succession Act 1867 allowed the Court to consider the question of an extension of time at the beginning of the final hearing, before proceeding to deal with the merits, or to hear the whole case before making a ruling on the matter. As I understand the decision, it does not address the question whether the issue may be resolved, at the respondent’s behest, at some time before the final hearing. That question has been considered in New South Wales, in the judgment of Hodgson J in Warren v McKnight.[2]
- [9]It might be thought that a limitation question, as an important threshold point, ought to be dealt with at an early stage in the proceedings before too much cost has been incurred. What seems to happen in practice is that parties with a reasonably strong case for primary relief or, at least, elements which engender them with some confidence that the discretion arising under s 41(8) will ultimately be exercised in their favour adopt the course mentioned in re Prakash[3], while those who perceive greater difficulty apply in advance of the final hearing. Two recent Queensland cases exemplify this alternative course: Bird v Bird[4], and Holman v McClelland & Ors[5].
- [10]Plainly, a difficulty confronts an executor or administrator defending a claim from an impecunious applicant who does not, herself, move to have the limitation point resolved early in the action. If the direction on that point under s 41(8) is left until trial the respondent will, by that time, have incurred all the costs it would face even if the application had been properly brought within the limitation period. Indemnity costs, suggested as a constraint by Hodgson J in Warren v McKnight[6], may be cold comfort.
- [11]Mr Conrick, for the applicant Ms O'Brien, was critical of the relief the administrator now seeks and, strictly speaking, paragraph 1 of the Public Trustee’s application filed 1 July 2003 is erroneous when it asserts the applicant has not sought the leave of the Court required by s 41(8) – she did so, in her originating application. Although the prayer for relief in paragraph 1 is, perhaps, infelicitously phrased it is tolerably clear the administrator wishes to bring the matter to a head, before more costs are incurred and time passes; and, its application is intended to do that by compelling early determination of the limitation issue, before the final hearing, in the same fashion as occurred in Bird, and Holman.
- [12]It could conceivably have done so by applying for summary judgment under rule 293 of the Uniform Civil Procedure Rules, which applies to proceedings like this, brought by Originating Application under rule 26[7]. Of course, to succeed in an application of that kind it would need to establish there was, in effect, no real question to be tried in connection with the limitation issue[8].
- [13]There also seems, however, to be no good reason why a respondent in a proceeding of this kind cannot itself approach the Court at a point before the final hearing seeking the “direction” envisaged by s 41(8). It would be anomalous if applicants could do so (as occurred in Bird v Bird, and Holman v McClelland[9]), but a respondent could not.
- [14]In that light, it is appropriate to deal with the Public Trustee’s application of 1 July 2003 on the basis that it seeks a determination of the matter raised in the subsection (and, for that purpose, to permit all necessary amendments to the application filed 1 July 2003). Both parties fully addressed the issues and evidence relevant to the limitation question, and neither sought to adduce further material or to adjourn for that purpose. (Mr Murphy, for the Public Trustee, did not advance an argument relying on the rules dealing with summary dismissal, but Mr Conrick made submissions on that issue and the respondent had ample opportunity to attempt a rebuttal, had it wished to do so. For the reasons which follow, I am satisfied that would have been futile.) There is not, then, any apparent impediment to resolution of the limitation issue now.
- [15]One preliminary, procedural question may arise. The judgments of Hodgson J in Warren v McKnight[10] and Mackenzie J in Holman v McClelland[11] consider, to differing degrees, a question which was only partly addressed during submissions in this matter. It concerns the weight to be given to the strength or weakness of the applicant’s case for primary relief (ie, for further provision from the estate) at this stage of the action, before all relevant material might have been filed. In Warren v McKnight it was argued that the strength of the applicant’s case could never be properly measured until all of the evidence had been adduced at a full hearing but Hodgson J rejected the proposition[12] (although he ultimately allowed the plaintiff further time to file material) and Mackenzie J, by implication, reached the same conclusion in Holman.
- [16]The Practice Directions impose a clear onus upon an applicant to place adequate material before the Court at an early stage and, here, the only “missing link” in the information about her circumstances and the size of the estate concerns the needs or relative claims of the beneficiaries, who have not filed material. There is nothing, however, to prevent an executor proceeding to a hearing in the absence of that material, on the understanding that absence may tell against the estate and ultimately of course the beneficiaries[13].
- [17]Unlike the applicant in Warren v McKnight it was not contended here for Ms O'Brien that she needed, or should have the opportunity to file further material about her financial circumstances. It was contended that one of the issues germane to the discretion under s 41(8) is the hotly disputed question whether she cohabited with the deceased as man and wife, and that could not be resolved save at a full hearing with cross-examination of the witnesses who had sworn affidavits about the matter. I agree, but that is simply a matter to be weighed in the course of considering the application the administrator has chosen to bring now, rather than wait until the final hearing.
- [18]As already remarked, the Public Trustee did not advance an argument based upon the summary dismissal provisions of the kind found to apply by Hodgson J in Warren v McKnight. Mr Conrick, for the applicant/respondent did make submissions that the Public Trustee could not demonstrate, on the face of the material, that this is an appropriate matter for summary dismissal, and I agree with that submission: while Ms O'Brien’s case is not straightforward, her affidavit material shows she is clearly in poor financial circumstances, and it is simply impossible to resolve the ‘connubial relationship’ question at an interlocutory hearing. It would also be relevant, to the discretion involved in an application for summary judgment, that the administrator has waited so long to bring it and, indeed, agreed to directions leading to an expedited hearing. I am satisfied, for these reasons, that an application for summary dismissal must have failed.
- [19]It falls, then, to consider the matter as a request by the respondent to have the limitation question resolved now, on its own merits, under s 41(8). The submissions of Mr Murphy, for the Public Trustee, focussed solely on that element of the application.
- [20]In Bird v Bird[14], White J accepted that the factors relevant to the exercise of discretion to extend time were, first, the sufficiency of the explanation of delay in making the claim; second, the question whether there was any prejudice to a beneficiary; third, whether there had been any unconscionable conduct by the applicant; and fourth, the strength of the applicant’s case[15]. Mackenzie J adopted the same tests in Holman v McClelland[16].
- [21]Of the factors identified in Bird the most relevant here are the explanation for the delay, and the strength of the applicant’s case. As to the latter, on the financial side she appears to be in poor circumstances and the estate, while not large by today’s standards is not, at the same time, insignificant. Nothing is known about the financial circumstances of the beneficiaries. It is at least possible, and perhaps likely, that her claim will succeed or fail on the issue of her relationship with the testator but that matter cannot be allowed much significance when it is, on the face of the many affidavits, highly contentious, and the respondent has chosen to bring the limitation matter to a head in an arena where it must be left unresolved. As a factor in the resolution of the limitation question it is, then, effectively neutral.
- [22]As to her explanation for the delay, in her first affidavit filed 27 June 2002 Ms O'Brien says that after Mr Koblitz’s death she consulted Mr Andrew Harris, a solicitor at Surfers Paradise. That must have occurred fairly promptly because Mr Harris wrote to the Public Trust Office within a month of the date of death, on 18 July 2000. She says she was not aware, herself, of any time limit applying in proceedings of this kind, and Mr Harris never informed her that one arose. Her evidence on those matters was not challenged. It was not until February 2002, when she learnt that Mr Harris had left the employ of her solicitors, that she was told by another member of the firm for which he had worked that there was a time limit (and, it may reasonably be inferred, that it had long passed). She was then referred to her present solicitors.
- [23]Mr Harris has sworn an affidavit filed on 22 July 2002 in which he says that Ms O'Brien’s claim was the only action of that kind he had on foot in Queensland, but he did have three similar actions for claimants in New South Wales and believed the Queensland time limit was the same – 18 months (NSW Family Provision Act 1982, s 16). He admits that around mid-2001 he had a telephone conversation with Ms McLeod of the Public Trustee’s office and she told him of the nine month limit arising under s 41(8). He then says:
16. I accept also that, in any event, after my conversation with McLeod… I should have advised my client of the time limit and sought immediate instructions from O'Brien to make application to the Court for leave to file O'Brien’s Family Provision application out of time. I did not do so.
- [24]Mr Murphy, for the Public Trustee, submitted that Mr Harris’ frank admissions did not exonerate the applicant herself, and the reasonableness of her own conduct remained an issue. He then pointed to the absence of any evidence from her about enquiries of Mr Harris concerning time limits, or to show that she had been an “active” client in the sense that she kept in regular contact with him and pressed him to pursue her claim. Some reliance was placed, for the proposition that the client carries a burden of this kind, upon the decision of the West Australian Full Court in re Estate of Nichos (dec’d); Grigoriou v Nitsos[17] but that case is not authority for the proposition that an applicant who promptly retains lawyers is nevertheless under an onus to enquire about any time limit, to check the advice she receives, and ensure her solicitor observes it. While the matter is now conjectural, it is clear from Mr Harris’ affidavit that, had she asked him, he would most likely have given her wrong advice.
- [25]
- [26]
- [27]As in Holman v McClelland an important issue at trial will be the precise nature of the relationship between the applicant and the deceased, including its financial aspects; and, in light of the evidence from a number of deponents Ms O'Brien may face some difficulty in establishing the usual elements of an ordinary connubial relationship. As Mackenzie J said of the applicant in Holman[24], her case appears to be not without difficulty but it cannot be said, definitely, that it is a case without any merit; and, unresolved evidentiary issues concerning the relationship make it unsafe to say more than that, as the matter stands.
- [28]It seems to me however, with respect, that Holman’s case should otherwise be distinguished because it was that combination of the applicant’s difficulties and a paucity of material about the nature of her contact with her solicitors which, ultimately, persuaded Mackenzie J to exercise the discretion against her. Here, the only reasonable inference to be drawn from Mr Harris’ affidavit is that he was not, himself, aware of the time limit until a date some time after it had expired and, then, he failed to alert the applicant to that error or do anything about it at all before departing from his employment. Unlike Holman, the applicant here was not told there was a time limit, or what it was; or anything which might put her on her mettle to pursue the matter by enquiries with her solicitor. Nor is there anything to suggest she may have been dilatory in keeping in touch with her solicitors or providing instructions, as occurred in Holman[25].
- [29]In the circumstances arising here there ought be a direction that the application be heard notwithstanding proceedings were not instituted within nine months of the date of death.
- [30]As to the applicant’s cross-application, there is evidence her health is poor and the matter was given priority by Hall DCJ four months ago. The action ought be placed upon the call-over list, with priority.
- [31]I will allow the parties the opportunity to make submissions about costs and, if necessary, further directions.
Footnotes
[1] (1981) Qd R 189
[2] (1996) 40 NSWLR 390 at p 394
[3] supra
[4] (2002) QSC 202
[5] (2003) QSC 110
[6] supra, at 396F
[7] UCPR, rule 291; Estate of Andrej Urbancic [2000] QSC 170, per Muir J
[8] Fancourt v Mercantile Credits Limited (1983) 154 CLR 87, 99
[9] supra
[10] supra
[11] supra
[12] At p 396
[13] Warren v McKnight (supra) at 396; Vasiljev v Public Trustee (1974) 2 NSWLR 497
[14] supra
[15] Bird v Bird (supra) paras [22]-[25]; Warren v McKnight (supra); and, re Terlier (1959) QWN 5;
re Walker (1967) VR 890 at 892; Clayton v Aust (1993) 9 WAR 364
[16] supra at para [6]
[17] (1999) WASCA 42
[18] supra
[19] (1948) SASR 248
[20] (1961) VR 435
[21] (1981) CA(UK) reported in Oughton Tyler’s Family Provision, Appendix A, pp 319-27
[22] Davies v Pagett (1986) 70 ALR 793 at 798-9 (Federal Court FC); Jess v Scott (1986) 12
FCR 187 at 190 (Federal Court FC); Kosto Kanellis v Allen (1974) VR 596 at 607 (FC)
[23] Neilsen v Peters Ship Repair Pty Ltd (1983) 2 Qd R 419 at 425, 431; Randel v Brisbane
City Council (1984) 2 Qd R 276 at 281, 285; and, see Christensen v DPP (2003) 1 Qd R
496 at 500-501
[24] supra, at para [7]
[25] supra, at para [12]