Thomson v Wenn[2024] QDC 221

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 22 July 2022, the applicant filed an Originating Application for family provision under s 41 of the Succession Act 1981 (Qld). She then allowed the claim to go stale. The respondents are the executors for the estate of Joyce Lloyd. This is their application to dismiss pursuant to rule 371 Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’).
2. [2]
   The Originating Application was filed and served without any supporting affidavit. Accordingly, the commencement of the application breached rule 28 UCPR and Practice Direction 8 of 2021. That was almost two and a half years ago. The breach was never remedied, and the applicant took no further step in the action. Since the second anniversary on 21 July 2024, the proceedings have been stayed by operation of r 389(2) UCPR.
3. [3]
   The court may impose sanctions under rule 5 for non-compliance with the rules.^[1] Rule 371 expressly confers a discretion to dismiss an application where there is a failure to comply with an “order” of the court. An order is defined in the dictionary in Schedule 3 of the rules to include a Practice Direction. The breach of the Practice Direction therefore enlivens the discretion to dismiss the Originating Application under rule 371. The ongoing failure to produce evidence or otherwise advance the application also breached rule 5 and the applicant’s overriding obligation to proceed in an expeditious way. Rule 5 requires this court to apply the rules with the object of avoiding undue delay, expense, and technicality, while facilitating the just and expeditious resolution at a minimum expense.^[2]

Time to prepare

4. [4]
   Early on the solicitors for both sides had worked towards agreement for a timetable in accordance with the Practice Direction. It came to nothing. The respondents also made a settlement offer. It was rejected. The applicant’s solicitors were unable to get further instructions from the applicant and ceased acting for her.
5. [5]
   The application to dismiss was filed on 2 September 2024. By that time, the applicant was no longer legally represented, although her former solicitors remained on the record. She did not know the application had been filed until 2 days before the hearing on 4 October. She appeared at the hearing by telephone from her home in South Australia and sought an adjournment because she was unprepared. The adjournment was refused.
6. [6]
   The applicant had actually been given at least 8 months’ advance notice. The respondents had first raised the prospect of a strike out application during the previous year. On 15 January 2024 their solicitors gave written notice of their instructions to proceed with the application without further notice. By that stage, it was unclear whether the applicant had retained her lawyers, nonetheless they accepted service and had informed her of the letter by February 2024. They received no response from her.^[3]
7. [7]
   At the hearing, the applicant blamed the lawyers for the delay. She gave evidence on her own behalf and Mr Hackett called her former solicitor. Mr Hackett made his closing submissions for the respondents. The applicant wanted time to absorb the argument for dismissal before formulating her response. She said she had not been able to properly read all the respondents’ material because she struggled with impaired vision and other physical and mental health issues. She was given an extension of one month from the availability of the transcript.

8. [8]
   The transcript was provided by 24 October 2024 and therefore the extended opportunity to provide material ended before the end of November. No additional material was provided.

The circumstances

9. [9]
   The applicant was the daughter of the testator, Joyce Lloyd. Mrs Lloyd died a widow, at the age of 99 years, on 24 October 2021. Her last will was dated 15 April 2016, and the subject of 2 codicils dated 29 Jan 2019 and 4 July 2019.
10. [10]
    Mrs Lloyd left 4 biological children and 2 stepchildren. She made two of the biological children executors and left her estate to them and one stepchild. The applicant is not one of the beneficiaries. By a codicil dated 29 January 2019, witnessed by her lawyer, Mrs Lloyd had removed the applicant from her will, declaring the reason to be that the applicant was a woman of substantial means and in no need of provision from the estate.
11. [11]
    The applicant has the only surviving claim upon the estate. Sadly, the second applicant, Kevin Lloyd, passed away last year. The sixth child, Yvonne Halliday, has disavowed any interest in the proceedings.
12. [12]
    To determine the respondents’ application, it is necessary to consider the nature of the applicant’s delay, the explanation for it and her prospects of otherwise succeeding in her claim.

Section 41 Succession Act

13. [13]
    A claim for family provision is governed by s 41 of the Succession Act 1981 (Qld). Relevantly, if a person dies without making adequate provision for the proper maintenance and support for her child, the Court may order such provision as the Court thinks fit. Even when that threshold test is met, the court retains a discretion to refuse to make an order if such refusal would be reasonable.

Evidence of the applicant’s claim

14. [14]
    At the hearing, the applicant’s focus was not on her need for maintenance and support, but on her sense of unfairness. She is understandably hurt by her exclusion. That does not provide a legal basis to override the testator’s freedom to dispose of her estate as she saw fit.

15. [15]
    The applicant began her oral evidence with matters beyond the scope of her application for family provision. She wanted the court to allow her to be buried with her father. She wanted to challenge the will on grounds of undue influence. She also raised mutual wills and swore her stepfather had promised the property was to be divided equally between the six children. He had died 25 years before her mother. No proceedings to challenge the will were on foot but the applicant asserted that was because her solicitor had failed to follow her instructions. She then attempted to claim legal professional privilege to prevent evidence from the solicitor about the same. By giving her account of privileged communication, however, the applicant had implicitly waived the privilege. Her former solicitor testified that he had advised the applicant that he could not represent her on any challenge to the will because there was insufficient evidence. He was the more credible witness. I am satisfied the applicant made a deliberate decision not to pursue that cause of action and her instructions were limited to the family provision.
16. [16]
    Evidence relevant to the strength of the applicant’s claim for family provision was limited. The respondents exhibited search results showing the applicant’s joint ownership of her home, and of a company with real estate. The applicant gave limited responses to cross examination concerning those assets. She disagreed with the Valuer General’s valuations of the unimproved value of each property being more than one million dollars. She stressed her chronic poor health and inability to work. Her house would eventually need extensive renovation for accessibility as her condition deteriorated. While expressly asserting need, the evidence fell short of outlining a case of need for maintenance and support within the meaning of s 41. This was a modest estate worth about $400,000. The applicant offered no evidence about her level of savings, sources of income, any other assets, her liabilities, or other expenditure. Without that fundamental evidence, she failed to raise a viable case.^[4]
17. [17]
    The three beneficiaries have filed affidavits. They each own one modest home. The beneficiary in strongest need is Mr Halliday. He is a widower with cancer who is planning to sell his home to fund his accommodation in a nursing home. The gift would allow him some short holidays and the opportunity to commemorate with ANZAC day activities. Mr Lloyd is an 85-year-old retired truck driver, in good health still in his own home. He and his wife manage by living simply and carefully. Ms Wenn is a widowed psychologist of 69 years, who is still working. There was some controversy as to whether she had understated her financial position.

Explanation for the delay

18. [18]
    The applicant maintained that she was not blame for the delay. She blamed her former solicitors for not preparing the affidavit when she had provided the material to them. It is more likely that the solicitors acted on her instructions. Contemporaneous correspondence indicates, and the applicant’s former solicitor confirmed, that the applicant had instructed her solicitors not to prepare an affidavit to conserve costs until the applicant had decided whether to continue with the proceeding. Then she stopped providing instructions.
19. [19]
    The applicant blamed computer issues on her failure to provide an affidavit while self-acting. She said her computer had been hacked and her emails stripped attachments. She could not recover what she had sent her lawyers. The day before the hearing she had asked her former lawyers to provide her with a copy. She emphasised her chronic poor health and disabilities. She was unprepared for the hearing. It was “grossly unfair”. She could not absorb the respondent’s argument. She needed time to respond.
20. [20]
    She was given an additional month to review the transcript of the hearing and address the arguments for dismissal. Then, after the date for judgment had been fixed, and more than a week after she had been notified that her time had expired, she requested more time. It had been almost two and a half years since she filed the Originating Application.
21. [21]
    In short, the applicant has had more than enough time to demonstrate the viability of her claim and to offer some real prospect that she would move to prosecute it in a manner reasonably consistent with her obligations under the rules. She has done neither.

History

22. [22]
    The applicant was not a reliable historian. Her unwillingness to accept responsibility went beyond the explanation for delay in this matter. Under cross examination she blamed previous lawyers for the dismissal of a claim for personal injuries and blamed the defendants in that case for using the medical evidence to end her legal career. Those allegations are disproved by the detailed reasons given in previous judgments against her.^[5] Although dated, those judgments show that the applicant’s propensity to commence, but not progress, litigation is not new.

23. [23]
    She had qualified as a chartered accountant and in 1982 commenced her own practice. In 1988 she suffered serious injury in a car accident. In 1997 she was admitted as a legal practitioner in South Australia. She ran a dual practice, before being removed from the roll of legal practitioners for failures in respect of five clients.^[6] She had failed to communicate with them for months and was not contactable. She had consistently ignored correspondence from the Legal Practitioners’ Disciplinary Tribunal. Evidence was given of post traumatic stress disorder and depression. She had been under treatment for at least 5 years.
24. [24]
    Earlier, in 1990, the applicant had commenced an action in the District Court of Queensland for personal injuries from the motor vehicle accident. It was characterised by “exceptional delays”. The proceedings were on foot for 15 years. That was attributable to the applicant’s issues. In almost every instance, she took no step to prosecute her claims unless required to do so by court order or under threat of an application by the defendant.^[7] She had also rejected a settlement offer of more than double the jurisdictional limit of the District Court. She waited just days before the date for trial in the District Court to apply to transfer proceedings to the Supreme Court, which had the result of delaying a trial by six months. She refused to attend medical appointments made by the insurer for updated reports, and promised, but failed, to obtain current reports from her own specialists. She made a last-minute application for adjournment of the trial in the Supreme Court on mental health grounds. The adjournment was refused because the applicant’s ongoing conduct showed an unwillingness to prosecute her claim and the adjournment would serve no purpose.^[8]
25. [25]
    The same unwillingness to bring her case to a resolution has been evident in the present matter.

Conclusion

26. [26]
    The applicant failed to reveal a viable case. I am satisfied her failure to prepare and serve an affidavit was deliberate. It was also in breach of the rules, never remedied and resulted in a stay of proceedings, after she had been forewarned about an application to dismiss. After the hearing of the application to dismiss, the applicant was afforded a generous amount of time to present a response. She did not manage to do so.
27. [27]
    Beyond her anger towards the respondents and her disappointment in the will, the applicant’s motivation remains unclear. Her stated view was that her mother’s six children and step children should share in the estate equally, yet she previously rejected a settlement offer^[9] which would have achieved exactly that. There is no reason to believe that the applicant’s approach would change even if she was given leave to pursue her stale claim.
28. [28]
    The costs of litigation are likely to be wholly disproportionate to the end in view. The estate has already been kept in abeyance for too long. To formally bring the case to an end now will stop further pointless delay and expense, for probably the same outcome. That is especially important given the size of the estate and the age of the beneficiaries.

Costs

29. [29]
    The applicant has had ample time to rectify her default. By letter on 14 November 2023 the respondents’ solicitors enquired whether the applicant wished to accept the settlement offer made 5 months earlier and referred to a possible strike out action. On 19 December 2023, the respondents’ solicitors gave written notice that if a strike out application was necessary, they would seek costs from the applicant personally. On 15 January 2024 the respondents’ solicitors advised in writing that they held instructions to apply for the dismissal of the claim. The respondents then waited another 8 months before filing this application, yet the applicant did nothing about her claim. Her only response was to stop communicating with her lawyers.

30. [30]
    The applicant did not appear today and has not been heard on the issue of costs. While this was an application for provision from the estate, the course of deliberate and sustained delay would favour application of the principle, costs follow the event. Nonetheless should the applicant wish to contest it, she may do so by delivering her submissions on costs no later than 24 December 2024.

Orders

1. The respondents have leave to proceed pursuant to rule 389(2) of the Uniform Civil Procedure Rules 1999 (Qld);
2. The Originating Application is dismissed pursuant to rule 371 of the Uniform Civil Procedure Rules 1999 (Qld)
3. The applicant has until 24 December 2024 to provide a written argument on costs. In the event that the applicant’s submissions on costs are not received, by the court and the respondents’ solicitors, by close of business on 24 December 2024, the applicant is to pay the respondent’s costs.