Wong v Mack[2023] QSC 269

SUPREME COURT OF QUEENSLAND

1. [1]
   Timothy Tim Keong Mack died on 26 January 2023.  He was 98 years of age.  The death certificate states the causes of death as multilobar pneumonia and cognitive impairment.
2. [2]
   The deceased had made a will some 13 months prior to his death – on 24 December 2021. 
3. [3]
   On 13 April 2023, the deceased’s grandson, Alexander Mack, made an application for probate.  However, on 18 May 2023 Mr Alexander Mack’s application for a grant of probate was requisitioned by the court’s registrar.  The requisition states:

“A cause of death namely Cognitive Impairment mentioned in the Death Certificate raises a question of testamentary capacity.  The duration of this illness specified is not specified and raises the possibility the will may have been executed during this period.”

The registrar continued:

“Action required: - File a further affidavit by the applicant with the details as required by paragraph 4 of form 105 of the Uniform Civil Procedure Rules 1999.  The affidavit need not repeat all the previous information only the information necessary to answer the requisition.”

4. [4]
   The applicants, Ms Merilyn Wong and Ms Jennifer Chow, are the deceased’s daughters.  They dispute the will on the grounds of a lack of testamentary capacity and undue influence.  They lodged a caveat on 2 June 2023.  On the same day, an affidavit of Alyce Carpin was filed by Mr Alexander Mack’s solicitors.  Ms Carpin deposes that, at the time he executed the will, the deceased appeared to have capacity.  She exhibits a doctor’s certificate dated 1 November 2021.
5. [5]
   Also on 2 June 2023, Ms Wong and Ms Chow gave notice of their intention to make a family provision application against the estate.
6. [6]
   During June and July 2023 Mr Winn, the solicitor for Ms Wong and Ms Chow, sought information about a number of matters including the deceased’s medical condition prior to his death and the assets and liabilities of the estate, and the status of companies connected to the deceased.
7. [7]
   On 8 September 2023, Ms Wong and Ms Chow filed and served their family provision application as well as an application for directions.
8. [8]
   By 10 October 2023, Ms Wong and Ms Chow were complaining of a lack of information and documentation from the estate.
9. [9]
   On 10 October 2023, when the matter came before Cooper J, the estate’s solicitor, Ms Parasyn, questioned the need for the assets and liabilities to be valued because the family provision application “is not proceeding at this time, and this will cause unnecessary cost to the estate.”  She contended that the only live issue was the deceased’s capacity at the time he executed the will.  She noted that medical records were being obtained. Ms Wong and Ms Chow were unhappy with progress.
10. [10]
    Cooper J decided to progress the proceeding. He ordered:

3. “3.
   By 23 October 2023, the respondent file and serve affidavit material setting out:

3. (a)
   a list of the assets and liabilities of the deceased as at the date of death;

3. (b)
   a copy of any power of attorney of the deceased, enduring or general; and

3. (c)
   the matters listed in annexure A to the application filed 8 September 2023.

3. 4.
   Pursuant to r 14, the proceeding continue as if started by claim.

3. 5.
   By 4pm on 30 October 2023, the respondent file and serve a statement of claim and an affidavit of scripts under r 632.

3. 6.
   If the respondent does not comply with order 5, the proceeding be dismissed and the applicants have leave to apply for a grant of letters of administration to themselves or any other suitable administrator.

3. 7.
   The applicants’ costs of and incidental to the application be paid from the estate on the indemnity basis.”

11. [11]
    Those orders, including orders 5 and 6 which operate as self-executing or guillotine orders, were not consent orders.  However, they were orders made without objection.
12. [12]
    The deadline in guillotine order 5, namely 30 October 2023, passed without Mr Alexander Mack filing and serving a statement of claim or an affidavit of scripts under rule 632.  At that point the proceeding stood dismissed by operation of the order of Cooper J.
13. [13]
    Three days later, Cranston McEachern filed a notice of change of solicitors.  They now acted for Mr Alexander Mack as the executor of the will of Timothy Mack.  On the same day, Cranston McEachern filed an application to vary order 5 of the orders of Cooper J so as to adjust the date for compliance to 14 November 2023. That is the application presently before the court – that is, for the court to unwind the effect of the guillotine.
14. [14]
    Ms Parasyn has affirmed an affidavit in support of that application.  It is necessary to explain the contents of Ms Parasyn’s affidavit.
15. [15]
    First, Ms Parasyn records that a draft order was handed up to Cooper J on 10 October 2023.  By an email at 2.10pm on that same day, Mr Winn for the applicants, copied to Mr Alexander Mack’s solicitors, advised the associate to Cooper J of an error in the draft order.  Paragraph 6 of the orders – the guillotine order - specified that the guillotine was to fall if Mr Alexander Mack did not comply with “order 4”.  In fact, that was what Mr Winn described as a “cross-referencing error”. The cross-reference should have been to order 5.
16. [16]
    On 19 October 2023, the associate to Cooper J advised that his Honour had corrected the error.  Eventually, on 24 October 2023, the order was sealed with the correct cross-referencing.
17. [17]
    This is something of a distraction.  The parties were all represented by solicitors and counsel at the hearing on 10 October 2023.  No party or lawyer says that they were misled or confused by the minor error in the draft order.  And so, in so far as Mr Foley (for Mr Alexander Mack) sought to base his submissions on this being a material change to the terms of the order, I reject that submission.
18. [18]
    Second, Ms Parasyn says that on 25 October 2023 she sent to Mr Clutterbuck of counsel the sealed orders in this proceeding and in the associated family provision proceeding.  She says that five days later, on 30 October 2023, Mr Clutterbuck advised that an extension should be requested as he could not meet the deadline due to court and other commitments.  And so, at 3.40pm – some 20 minutes before the guillotine was to fall – Ms Parasyn requested an extension of time from the solicitors for Ms Wong and Ms Chow. Presumably, if they agreed, the parties would then have sought from the court an order extending the time by consent.
19. [19]
    It is worth noting four related things at this point.  The first is that the guillotine order had been made on 10 October 2023.  It did not require any particular haste.  It required a statement of claim and an affidavit of scripts by 30 October 2023 – some 20 days after the order.  The second is that no steps appear to have been taken by Mr Alexander Mack’s solicitors to comply with the order of Cooper J until the decision to send the sealed orders to Mr Clutterbuck on 25 October 2023.  There is no evidence that a brief to counsel was prepared, or even that there were instructions to counsel, or a draft of the documents for counsel to settle.  The third is that Mr Alexander Mack’s solicitors seemed to be entirely unconcerned by the impending activation of the guillotine order.  Even if the order did not have self-executing consequences, the decision to simply refer the orders to counsel, and to do so some 15 days into the 20 day compliance window, is surprisingly blasé.  Fourth, Mr Alexander Mack and his then solicitors have not deposed that they were confused or mistaken by the orders or that they did not understand the consequences of non-compliance.  There is no real explanation as to why the deadline was permitted to pass – beyond the facts explained above.
20. [20]
    What then happened is entirely predictable.  At 4.32pm on 30 October 2023 Mr Winn, the solicitor for Ms Wong and Ms Chow, wrote saying that in accordance with the orders of Cooper J the proceeding had been dismissed.  Mr Alexander Mack’s solicitors then wrote to the Registrar, with a copy to Mr Winn, accusing Mr Winn of a lack of professional courtesy. They sought a relisting of the matter.
21. [21]
    On the next day, 31 October 2023, Mr Iain Aitken, a solicitor from Mr Alexander Mack’s new solicitors, Cranston McEachern, emailed Mr Winn saying that his firm had been briefed in place of Mr Mack’s former solicitors.  He gave notice of an urgent application to vary the orders made on 10 October 2023.
22. [22]
    On 2 November 2023, Mr Aitkin received an email from Mr Clutterbuck of counsel which enclosed a draft claim, statement of claim and affidavit of scripts.
23. [23]
    On the same day, 2 November 2023, Mr Mack’s new solicitors made this application to vary paragraph 5 of the 10 October 2023 order of Cooper J so as to alter the deadline date from 30 October 2023 to 14 November 2023.
24. [24]
    Two issues were argued on the application:

    1. whether the court is able to extend time under the orders of Cooper J; and
    2. if so whether the court should exercise its discretion to extend time under those orders.

25. First Issue: Is there Power to Extend Time?

25. [25]
    For Ms Wong and Ms Chow, Ms Rae of counsel emphasised that one species of self-executing order does not contemplate or require any further step, and, in those cases, the self-executing order takes effect according to the terms of that order.
26. [26]
    There are, Ms Rae submitted, two well-known examples of that species of self-execution order.  The first is Bailey v Marinoff.^[1]  In that case the self-executing order was made on 10 February 1970 and required that “if the Appellant does not file and serve the appeal books herein on or before the 31^st day of March 1970 the appeal is to stand dismissed for want of prosecution.”  As it happened, the appeal books were filed on the day of the deadline – 31 March 1970 – but were not served until a week later – on 6 April 1970.
27. [27]
    Despite the guillotine having fallen, the New South Wales Court of Appeal ordered that the filing and service of the appeal books should be deemed sufficient compliance with the order of 10 February 1970.
28. [28]
    The High Court took a different view. Menzies J (with whom Barwick CJ agreed)^[2] said:

“This appeal is not concerned with the power of a court to alter orders in pending litigation.  It is concerned with the power of a court to make an order in litigation which, without any error or lack of jurisdiction, has been regularly concluded and is no longer before the court.  To recognise the problem is, I think, to solve it.  However wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot, in my opinion, extend (to) the making of orders in litigation that has been brought regularly to an end.”

29. [29]
    The second example of this species of self-executing order is Mango Boulevarde Pty Ltd v Spencer.^[3]  There the order was that, upon the solicitors for the plaintiff filing an affidavit deposing to the failure of the first and/or second defendants to comply with certain orders, there shall be judgment for the plaintiff.  Muir JA found that the order took effect merely on the filing of a relevant affidavit.
30. [30]
    It can be accepted that the decision of the Court of Appeal in Mango Boulevard was that self-executing orders take effect as they are designed.  The precise wording of the self-executing order is important, particularly the identification of the trigger or the event which produces the self-executing consequence. However, while it can be accepted that there are differences in the precise terms of the various self-executing orders, the central issue here is the power of the court to vary a self-executing order. Neither Mango Boulevard nor Bailey v Marinoff considered the scope of the court’s power under rule 7(1) or rule 668(1) of the Uniform Civil Procedure Rules 1999.^[4]
31. [31]
    That brings me to Mr Foley’s argument on behalf of Mr Alexander Mack.  Mr Foley relies, firstly, on rule 7 of the UCPR as the source of the court’s power to vary a self-executing order.  That rule is in these terms:

3. “7
   Extending and shortening time

3. (1)
   The court may, at any time, extend a time set under these rules or by order.

3. (2)
   If a time set under these rules or by order, including a time for service, has not ended, the court may shorten the time.” [emphasis added]

32. [32]
    Thus, by its terms, rule 7(1) is a broad discretionary power.  The discretion arises “at any time”.  The ordinary and literal meaning of those words comprehends an extension to the time specified in a court order, even where the order has self-executing consequences. There is no sensible basis for confining rule 7(1) to orders without self-executing consequences or implying a temporal restriction on the court’s power to extend time. In my view, the broad discretion is not displaced even where the time in the order sought extended has expired and the effect of that expiry was to dismiss the proceeding.^[5]
33. [33]
    The breadth of the power to extend time under rule 7(1) was recognised by Wilson J in an earlier episode in the Mango Boulevard Pty Ltd v Spencer^[6] litigation:

“In FAI General Insurance Company Limited v Southern Cross Exploration NL^[7] Wilson J (with whom Brennan, Deane and Dawson JJ agreed) said of a rule cognate to r 7 that it is to be regarded as a remedial provision conferring on a court a broad power to relieve against injustice, but manifestly a power to be exercised with caution and, in the case of self-executing orders, with due regard to the public policy centred in the finality of litigation and the principle that orders are made to be observed.”

34. [34]
    Consequently, I accept Mr Foley’s argument that rule 7(1) gives the court a discretion to extend the times specified in the order of Cooper J.
35. [35]
    Mr Foley also relied on rule 668 of the UCPR.^[8]  However, in light of my conclusion that there is power to extend under rule 7(1), it is unnecessary to consider that issue.

36. Second Issue: Should the Court exercise the Discretion to extend time?

36. [36]
    The next issue is whether the court should exercise its discretion under rule 7(1)  to extend the time under order 5 of the orders of Cooper J.
37. [37]
    Both parties referred me to the judgment of Keane JA in Chavez v Moreton Bay Regional Council.^[9]  There His Honour said:

“… the discretion conferred by r 7 should be exercised in favour of a party in the position of Mr Chavez only in cases where there is good reason for depriving the other party of the benefit of a free and voluntary agreement.”

38. [38]
    However, the reasoning in Chavez is of limited assistance in this case.  Mr Chavez had consented to orders which had a self-executing element.  The consensual or contractual element to those consent orders was a factor inherent in the court’s reluctance to vary the consent order pursuant to rule 7.^[10]
39. [39]
    Here, Mr Mack neither consented nor opposed the orders made by Cooper J.  Thus, the contractual element is absent.  Consequently, I do not approach the discretion on the basis that good reason needs to be shown for depriving the applicants of the benefit of the self-executing order.
40. [40]
    The factors relevant to the exercise of the broad discretion in this case are:

    1. the extent and effect of the delay;
    2. the explanation for the delay; and
    3. issues of prejudice and merits.

36. Extent of Delay

41. [41]
    Mr Timothy Mack died on 26 January 2023.  Mr Alexander Mack applied for probate of the will in April 2023.  Almost immediately the registrar, and Ms Wong and Ms Chow, questioned whether the deceased had testamentary capacity at the time he executed the will in December 2021.  Seven months after it was first raised, the issue of testamentary capacity remains unresolved.  Indeed, the issue appears some distance from resolution.  No expert evidence has been obtained.  All that has been done to progress the issue is that:

    1. Mr Mack’s solicitors have produced a letter dated 1 November 2021 from a Dr Kao Frank, a general practitioner, saying, somewhat enigmatically, “This is to inform that Mr Timothy Mack who is a resident at the Arcare Eight Mile Plains Aged Care Facility has the capacity in decision making based on his clinical and cognitive status.”
    2. Ms Carpin, the solicitor present when the deceased signed the will has sworn that he appeared to have full knowledge of his affairs and a clear understanding of the implications of his decisions.
42. [42]
    However, that evidence is rather thin.  The general practitioner does not explain the basis for his opinion, or even that he treated or examined Mr Timothy Mack.  The solicitor does not explain any of the circumstances or the checks she made.  Evidence from the deceased’s treating doctors is conspicuous by its absence (this medical aspect is discussed below).
43. [43]
    The solicitors for Ms Wong and Ms Chow were pressing for evidence when the matter came before Cooper J on 10 October 2023.  In their written submissions to His Honour, they complained that, despite the registrar’s requisition and their caveat, and the passage of several months:

    1. the executor had not provided evidence of the deceased’s capacity to make the will; and
    2. the executor had not applied to prove the will in solemn form and had not disclosed earlier wills (or advised that none existed). 
44. [44]
    The situation with the estate was described by counsel for Ms Wong and Ms Chow as being “in a kind of stasis” until steps were taken to establish whether the will could be proved.
45. [45]
    That was the context for the making of the order on 10 October 2023.
46. [46]
    Then, once the order was made, Mr Alexander Mack’s solicitors appear to have done nothing to progress the proceeding until 25 October 2023.  Even then, they merely forwarded the orders to counsel.  As I have mentioned, there is no evidence of a brief, or of instructions to counsel, or of drafts, or of any further work.
47. [47]
    On 30 October 2023, as explained, the solicitors for Mr Mack emailed the applicants’ solicitors, some 20 minutes before the deadline, seeking further time.  They sought an extension without explaining what they had done or why the extension was needed.  Perhaps it was assumed that the extension merely had to be requested.^[11]  Orders of the court are backed by the capacity of the court to impose sanctions if a party fails to comply.^[12]  And self-executing orders are backed by their own in-built consequence – designed to ensure compliance with the court’s orders.
48. [48]
    It is commonplace for practitioners and for the court to extend the time specified in a court order.  However, it can hardly be assumed that fellow practitioners will agree to an extension, or that the court will sanction an extension – especially if there is no evidence of genuine attempts to comply or some other good reason for the extension. 
49. [49]
    If the order is a self-executing order, the situation is very different.  The built-in consequences are designed to ensure compliance with the deadline.
50. [50]
    Here, the extension sought was from 30 October to 2 November 2023 – a period of only three days.  The outstanding documents were received from counsel on 2 November 2023 and so they were able to be filed from that date onwards.  The application seeks an extension until 14 November 2023, but I accept that is simply on the basis that the solicitors for Mr Mack do not wish to file the documents without the leave of the court.
51. [51]
    Nevertheless, there is no explanation of the reasons for the delay – from either Mr Alexander Mack or from his solicitors.
52. Effect of the Delay

52. [52]
    And so, whilst the extension being sought is quite short, the problem is that there have been significant delays until now and the delay has consequences.  As Ms Rae points out:

“This is an application for probate in the deceased’s estate.  So long as this application is on foot, the estate has no-one with authority to act on its behalf, call in its assets, and administer it.  Delay is not in the interests of the due administration of the estate, which ought be the principal consideration.  Allowing Mr Mack additional time to file pleadings relating to the Disputed Will should only be done if there are reasonable prospects that the Disputed Will would be proved.”

53. [53]
    There is likely to be a significant disruption to the estate arising from further delays.  The deceased had assets in both Australia and Papua New Guinea.  He controlled a number of companies.  The real estate included in the estate comprises the following properties:

25.1 Unit 19, 92 Milton Street, Ashfield, New South Wales.

25.2 25 Chartreuse Street, Sunnybank Hills, Queensland.

25.3 2 Inca Street, Sunnybank Hills, Queensland.

25.4 A block of units at Lakemba in Sydney.

25.5 One or more two houses possibly in Brisbane.^[13]

54. [54]
    The companies controlled by the deceased owned three other properties.  There are also bank accounts, shares, jewellery, gold and precious metals, diamonds, pearls and other precious gems that are part of the estate.  The whereabouts of those items are not known – at least to the applicants.
55. [55]
    Given the nature of the estate, it is in the interests of the estate that there be no further delays to the administration of the estate.
56. Prejudice/Merits

56. [56]
    A factor relevant to the discretion is whether extending the time will serve any useful purpose.  Of course, any assessment of the merits of Mr Alexander Mack’s application for probate has the inherent difficulty that the parties have not gone into evidence on the issue. And, as Mr Foley emphasised, the consequence of the guillotine falling is that the Mr Alexander Mack will lose his right to prosecute the proceeding.
57. [57]
    Nevertheless, the prospects of proving that the deceased had testamentary capacity in December 2021 look to be bleak.  The material subpoenaed from the Greenslopes Private Hospital is solid evidence that the deceased did not have capacity in August 2021 – some months before the will was executed.
58. [58]
    Mr Foley submitted that there is little or no prejudice to Ms Wong and Ms Chow in ordering the proposed short extension of time. He argued that they may proceed with their case with expedition, but on the merits rather than on the guillotine.
59. [59]
    In my view the focus of that submission is too narrow. Whilst the interests of the parties are relevant, the court’s concern for the due administration of the estate is of particular significance given the nature of the assets, and the delay thus far. And, it must be said that Ms Wong and Ms Chow have already endeavoured to proceed with the case with expedition, without much success. That is why they sought and obtained a self-executing order from Cooper J. Even that order did not prompt Mr Alexander Mack into action.
60. [60]
    That raises an administration of justice issue. Rule 5(3) specifies that the parties impliedly undertake to the court that they will proceed in an expeditious way. The court is empowered by rule 5(4) to impose sanctions if a party does not comply with an order or the rules. Mr Alexander Mack failed to proceed as required by an order of the court. The order itself provided the consequences of non-compliance. The objective was to ensure compliance. In that context, I do not accept that the court should lightly extend time under a self-executing order. To do so without a proper basis for exercising the discretion carries with it a risk of devaluing orders of the court and particularly self-executing orders.  
61. Conclusions

61. [61]
    Whilst rule 7(1) of the UCPR gives the court a discretion to extend the time under the self-executing orders of Cooper J, it is inappropriate to exercise that discretion.  The delay is not explained, let alone adequately explained.  The delay, and the further delay likely if Mr Alexander Mack’s application for probate proceeds, are likely to cause some disruption to an estate with some significant assets and some complexity.  And, the likelihood is that allowing more time will be a pointless exercise given the evidence as to testamentary capacity.
62. [62]
    The application to extend time should be refused. I will hear the parties on costs.