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Jobson v Clarke[2021] QDC 320

DISTRICT COURT OF QUEENSLAND

CITATION:

Jobson v Clarke [2021] QDC 320

PARTIES:

PHILLIP JOBSON

(Applicant)

v

VARRO CLARKE AND MARGARET ANNE STEEN AS PERSONAL REPRESENTATIVES OF THE ESTATE OF EDITH WALCHER (DECEASED)

(Respondents)

FILE NO:

2572/21

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

16 December 2021

JUDGE:

Porter QC DCJ

ORDER:

By consent that:

  1. Direction 5 of the Directions Order filed 22 October 2021 (the Directions) be varied so as to alter the date for the Respondents’ affidavit to be filed and served to 1 February 2022; and
  1. Direction 7(b)(i) of the Directions be varied so as to alter the date for the mediation to 14 February 2022.

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) rr. 5, 367, 666

Succession Act 1981 (Qld), Part 4

CASES:

Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286

Affoo v Public Trustee of Queensland [2012] 1 Qd R 408

COUNSEL:

R. Whiteford for the Applicant

SOLICITORS:

Shine Lawyers for the Applicant

Varro Clarke & Co Lawyers for the Respondent

  1. [1]
    On 1 October 2021, the Applicant commenced these proceedings under Part 4 Succession Act 1981 (Qld), seeking provision from his mother’s estate.[1] As required by paragraphs 6, 8 and 9 of Practice Direction No. 8 of 2001, a Directions Order was made on 22 October 2021.[2]
  2. [2]
    Paragraph 5 of that Order required the Respondents’ affidavit to be filed and served by 23 November 2021. Paragraph 7(b)(i) required the parties to attend a mediation by 21 December 2021.  Because of the difficulties experienced by the Respondents in obtaining the evidence necessary for their affidavit, the Applicant and the Respondents agreed to vary:
    1. (a)
      the date for the Respondents’ affidavit to 1 February 2022; and
    2. (b)
      the date for the mediation to 14 February 2022.[3]
  3. [3]
    On 25 November 2021, the Applicant filed a Request for Consent Order of Registrar varying the Directions Order in these respects.[4] On 26 November 2021, an Acting Deputy Registrar refused to make that order. The ground of refusal was:

The Originating Application is a family provision application under part 4 of the Succession Act 1981. Pursuant to paragraph 6(s) of District Court Practice Direction 2 of 2010 – Consent Orders of the Registrar, an order in a family provision application under part 4 of the Succession Act 1981 is an order more appropriately made by a judge.[5]

  1. [4]
    Accordingly, this Application has been made to the Court for directions under Rule 367 Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to be made by consent to vary the Directions Order initially made by consent. There is no question that the Court should vary the Directions Order in the manner consented to by the parties.   
  2. [5]
    The real issue which arises is the correctness of the Acting Deputy Registrar’s view that a consent variation to a Directions Order is one more appropriately made by a Judge. This is said to be worth the attention of this Court because of the frequency with which parties to Family Provision Applications seek to vary the initial Directions Order made under Practice Direction No. 8 of 2001 by consent.
  3. [6]
    Indeed, the experienced counsel who appeared for the application requested that the Court publish a judgment to clarify this issue for the parties and the Registrars. It is because of that request that I publish reasons.
  4. [7]
    In my respectful view, the Acting Deputy Registrar erred in concluding that the making of consent variations to a Directions Order made under Practice Direction No. 2 of 2010 is an order more appropriately made by a Judge. 
  5. [8]
    The order sought from the Acting Deputy Registrar is a consent order. Rule 666 UCPR confers power on a Registrar to give judgment or make another order if the parties consent in writing and the Registrar considers it appropriate. It is the second consideration which plainly engaged the Acting Deputy Registrar’s attention when refusing to make the consent variation order in this case.
  6. [9]
    Practice Direction No. 2 of 2010 deals with the power to make consent orders under Rule 666 UCPR. It provides guidance to the Registrar as to how the Registrar should approach determining when it is appropriate to make orders by consent.  Paragraph 5 identifies when consent orders “should ordinarily be sought from the Registrar in the first instance” and includes expressly, inter alia, by paragraph 5(i), “directions as to the conduct of a proceeding not under judicial case management.” 
  7. [10]
    In my respectful view, consent variations to a Directions Order under Practice Direction No. 8 of 2001 falls within the plain meaning of those words:
    1. (a)
      Applications for consent variations to Directions Orders are plainly directions as to the conduct of a proceeding; and
    2. (b)
      Family provision applications proceeding under Practice Direction No. 8 of 2001 are, by their very nature, not under judicial case management. Indeed, it is part of the success of Practice Direction No. 8 of 2001 that it usually results in family provision applications being resolved without a Judge ever touching the file, other than to make orders to give effect to a settlement in a brief hearing.
  8. [11]
    The Acting Deputy Registrar’s refusal to make the consent variation order, however, appears to have been based on paragraph 6(s). Paragraph 6 provides for applications where consent orders “are more appropriately made by a Judge” and will “generally be refused by a Registrar.” In that sense, it is complementary to paragraph 5. Together they provide guidance as to what is and what is not appropriate under Rule 666 UCPR
  9. [12]
    Paragraph 6(s) refers to an order in a family provision application under Part 4 Succession Act 1981 (Qld). This subparagraph is referring to a final order in a family provision application, not to directions for the management of the application towards a final order. This follows as a matter of construction because:
    1. (a)
      Practice Direction No. 2 of 2010 draws a distinction between directions and orders. While the distinction might be ambiguous at the margins, the orders under consideration were plainly in the character of directions;
    2. (b)
      In that context, it makes sense that the kind of order contemplated by paragraph 6(s) is a substantive order disposing of the family provision application. That tends to be confirmed by the fact that such orders cannot be made by consent;[6]
    3. (c)
      It is consistent with Rule 5 UCPR that simple matters, such as consent variations to programming orders, should be dealt with in as quick and efficient manner as possible. It is exactly that kind of situation which Rule 666 UCPR is concerned to facilitate: see paragraphs 2 and 8 of Practice Direction No. 2 of 2010.
  10. [13]
    Finally, Practice Direction No. 8 of 2001 also confers power on the Registrar to vary directions by consent. First, paragraph 9(b) of Practice Direction No. 8 of 2001 confers jurisdiction on the Registrar to make the initial Directions Order in family provision proceedings. Referring to that Directions Order, paragraph 10 of that Practice Direction provides:

Any variation of an order once made may be sought under the liberty to apply provision of the directions order.

  1. [14]
    Even if this is construed as referring to liberty to apply to the Court, the paragraph uses the permissive word “may”. Properly understood, paragraph 10 means that disputed applications for variation of the Directions Order should be made to the Court and not to the Registrar.  Paragraph 10 should not be construed as requiring variations by consent to be made to the Judge. Since the initial Directions Order in family provision applications is made by consent by the Registrar, there is no reason why variations to that Order cannot also be made by consent by the Registrar. This interpretation is consistent with the purpose of Practice Direction No. 8 of 2001 which, as stated in paragraph 2(c), thereof includes: “minimising the number of appearances necessary to dispose of Family Provision applications.”
  2. [15]
    The applicant applied for a declaration confirming the correct approach to Practice Direction No. 2 of 2010. I do not consider that it is a proper case for a declaration.  However, I have no doubt that the Registrar will have regard to these reasons when considering consent variations to directions orders made under Practice Direction No. 8 of 2001.
  3. [16]
    Finally, parties should, as a matter of practice, vary directions where they are not able to be complied with. Directions set out the expectations of the Court for the prompt disposition of proceedings, even if those expectations are defined by the consent of the parties in most family provision applications.  It is inconsistent with the obligations in Rule 5 UCPR, and inconsistent with the obligation of parties to comply with orders of the Court, for parties to treat directions “more as guidelines than actual rules”.[7]   That might be acceptable for the Pirate Code, but not for directions of this Court.

Footnotes

[1] Originating Application filed 1 October 2021 (CD 1).

[2] Directions Order filed 22 October 2021 (CD 3).

[3] Affidavit of K. Doan Do sworn 30 November 2021 at paragraph 4 (CD 7).

[4] Request for Consent Order of Registrar filed 25 November 2021 (CD 4).

[5] Notice of Refusal filed 26 November 2021 (CD 5).

[6] Affoo v Public Trustee of Queensland [2012] 1 Qd R 408 at [24]; Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286 at [30].

[7] Captain Barbosa to Ms Swan, Pirates of the Caribbean: The Curse of the Black Pearl (2003).

Close

Editorial Notes

  • Published Case Name:

    Jobson v Clarke

  • Shortened Case Name:

    Jobson v Clarke

  • MNC:

    [2021] QDC 320

  • Court:

    QDC

  • Judge(s):

    Porter QC DCJ

  • Date:

    16 Dec 2021

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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