Ruthenberg v Lewis & Ors [2004] HCATrans 240 (23 June 2004)

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Ruthenberg v Lewis & Ors [2004] HCATrans 240 (23 June 2004)

Last Updated: 29 June 2004

[2004] HCATrans 240

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B40 of 2003

B e t w e e n -

PETER RUTHENBERG

Applicant

and

ROSMOND ANN LEWIS AND AMY BOND

First Respondents

CYNTHIA LUNE LOHSE

Second Respondent

VIOLET GUSE

Third Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 9.39 AM

Copyright in the High Court of Australia

__________________

MR P. RUTHENBERG appeared in person.

MR R.T. WHITEFORD: If it please the Court, I appear for the first respondents. (instructed by Roberts & Kuskie)

MR M.P. AMERENA: If it please the Court, I appear for the second respondent. (instructed by Morton & Morton)

GUMMOW J: The Court holds a certificate from the Deputy Registrar stating that he holds a letter from the third respondent indicating she does not wish to appear in this application and that she will abide by the decision of the Court save as to costs. We will call on you first, Mr Whiteford, if you would.

MR WHITEFORD: If it please the Court.

GUMMOW J: Is there any arrangement between yourself and your colleague as to division of time?

MR WHITEFORD: No. I doubt if my learned friend would wish to add much.

GUMMOW J: Very well.

MR WHITEFORD: If it please the Court, the first matter which I could draw the Court’s attention to is it is difficult to know whether the applicant persists in asserting that the second respondent, Mrs Lohse, was permitted to withdraw her earlier acceptance of the condition attaching to the gift. As the Court would be aware, the trial judge and the Court of Appeal found that she was. The application for special leave and the draft notice of appeal do not challenge that. If I could also draw the Court’s attention to paragraphs 24 and 37 of Mr Ruthenberg’s reply to the first - - -

GUMMOW J: What matters is the draft notice of appeal.

MR WHITEFORD: What matters does it raise, your Honour? Is that your question?

GUMMOW J: Yes.

MR WHITEFORD: Your Honour, the grounds would appear to be those which - - -

GUMMOW J: Page 35. The grounds would appear to be two in nature: one as to the construction point as to clause 10, and two as to what one might say the election point.

MR WHITEFORD: Yes, the election point being the point concerning whether or not it required joint or several acceptance. However, the issue which - - -

GUMMOW J: No. I am looking at ground 2(d).

MR WHITEFORD: I am sorry, perhaps I have the wrong page of the application book.

GUMMOW J: Page 35.

MR WHITEFORD: Thank you, your Honour. I am looking at the application for special leave. Paragraph (d) relates to the reasonable time for acceptance - - -

GUMMOW J: Yes, that is the election point. That is what I was just saying to you.

MR WHITEFORD: With respect, your Honour, that is somewhat different from the election point that I was intending to draw your attention to.

GUMMOW J: I know. What I am trying to put to you is it is the grounds on page 35 that matter. That is the draft notice of appeal.

MR WHITEFORD: Yes, that is right.

GUMMOW J: Right. And it seems to raise questions that fall into two classes. One is the construction of clause 10, and two is the election point, and there is also a subsidiary debate about costs.

MR WHITEFORD: Yes, that is right. However, (d) goes towards what is the reasonable time. A question arises even before that, and that is whether or not there is an estoppel which prevented Mrs Lohse from withdrawing her earlier acceptance.

GUMMOW J: That is not agitated on page 35.

MR WHITEFORD: Yes, that is right. That is right. That is precisely the point, but I was endeavouring to draw your Honour’s attention to this, that in paragraph 20 of - - -

GUMMOW J: Let me indicate to you, the two points that appear to us at the moment to cause some disquiet are the two points I have just enunciated.

MR WHITEFORD: Thank you, your Honour.

GUMMOW J: If you would address yourself to them, the time will be usefully employed.

MR WHITEFORD: Thank you, your Honour. If I could then move on to the sole acceptance point, it is submitted that Mr Ruthenberg has misconceived the issue, the issue being not whether one tenant in common can accept a gift but whether, on the wording of this particular will, joint acceptance of the condition precedent to the gift was required.

HAYNE J: Exactly. Now, why should you interpret the will as requiring joint action when the gift is in common?

MR WHITEFORD: The answer to that is as outlined in my outline, if I could take your Honours immediately to that, and that is that upon the wording of the will the word “them” is used, that the decision of the Court of Appeal as to the construction of those words is plainly within the common English usage of them. If several acceptance was what was intended by the testator, then the inconvenient results would arise which the Court of Appeal alluded to and - - -

HAYNE J: Namely?

MR WHITEFORD: That is - - -

HAYNE J: What is the inconvenient result?

MR WHITEFORD: That one half of the gift would fall into residue and there would be a tenancy in common between the residuary beneficiaries and Mr Ruthenberg.

HAYNE J: What is inconvenient about that?

MR WHITEFORD: Because it seemed to be common ground below that it was the intention of the testator that the property be worked as a going concern.

KIRBY J: Your submission is that the intent of the will was that the testator wanted to keep the property together and run by the nephew and the other respondent.

MR WHITEFORD: Mrs Lohse, who was - - -

KIRBY J: And that was the object of the testator to be inferred from the will.

MR WHITEFORD: Yes, that is right.

KIRBY J: And that is the view that recommended itself to the Court of Appeal.

MR WHITEFORD: Yes, that is right.

KIRBY J: And that is a fairly legitimate and orthodox construction of a will to give, in effect, if it can lawfully be done, to the intent of the testator.

MR WHITEFORD: Yes.

KIRBY J: But as against that, is it so impossible to reconcile with the testator’s wishes that the alternative theory should be adopted, namely, that it should go to the one and that the other should be administered by the executors or whoever is in control of the residual estate?

MR WHITEFORD: With respect, that is the submissions of the - - -

KIRBY J: Why is that so difficult to achieve in practicality, that it cannot be said to have been an intent of the testator in the words he used?

MR WHITEFORD: Because of the difficulty which would then flow from people who, upon the evidence, may or may not have had any interest in the conduct of the rural property.

HAYNE J: That is what the partition provisions are all about. Let it be assumed the construction you assert is right. The day after the two co-tenants could partition the land. Nothing to stop them? So this notion of “Let’s give effect to testator’s intention”, the relevant intention is to give it to two persons in common, not jointly, and all that that carries with it.

MR WHITEFORD: Insofar as the gift is concerned, that is correct. However, it is submitted that the point is, what is the construction of the condition for the gift? For example, it could have been given as joint tenancy, but the will could have been so phrased that one of those joint tenants must assume the liability attaching to the land for the joint tenancy gift vested.

HAYNE J: Now, are we to understand that the relevant security that was given to Elders was a security mortgaging all land, not just this piece?

MR WHITEFORD: Yes, that is correct, full land and - - -

HAYNE J: And all stock, not just the stock.

MR WHITEFORD: Yes, that is right. So it extends to, as I say, all of the lands of the testator, notwithstanding the fact that on the evidence it was primarily raised for “Rossgae”.

GUMMOW J: That then would involve the application of section 61 of the Succession Act.

MR WHITEFORD: Yes, that is right.

GUMMOW J: The general provision in clause 12 as to payment of debts would not suffice. It would fall within 61(2). It would not suffice as a contrary intention, would it?

MR WHITEFORD: Would your Honour bear with me while I turn up clause 12 of the will? Clause 12 of the will, the residuary clause, that is correct. The issue which was agitated below - - -

GUMMOW J: So if there is a contrary intention, it is to be found in 10?

MR WHITEFORD: Yes, that is right. The issue which was agitated below – there was initially a concession at the trial that clause 10 did demonstrate the relevant contrary intention. Your Honours will see that that was challenged again on appeal. The court, nonetheless, proceeded to find the trial judge was correct, and there appears to be no appeal against that to this Court.

GUMMOW J: What does it mean “subject to them accepting liability”? Does that mean personally?

MR WHITEFORD: Yes. It is submitted that that will attach a personal liability to the people who accept the condition.

KIRBY J: Do you still have an argument that the applicant did not accept liability in due time?

MR WHITEFORD: Yes.

KIRBY J: That would be a notice of contention point, would it?

MR WHITEFORD: Yes, that would be right.

HAYNE J: And that would be in the nature of invoking some doctrine of election, would it?

MR WHITEFORD: Yes, well, perhaps - - -

HAYNE J: Which would have to be a fully informed election, would it not?

MR WHITEFORD: There would be all of those issues. The issue, as your Honours saw - - -

GUMMOW J: Well, that does not necessarily give one the trembles. Now, is it not ordinarily right that one does not put somebody to an election where they cannot be informed as to the nature of the legal rights between which they are electing because there is a law suit on foot?

MR WHITEFORD: That was another issue. An issue - - -

GUMMOW J: Well, it sounds like commonsense.

MR WHITEFORD: The issue which was resolved against Mr Ruthenberg at the trial was that the reasonable time within which he could make the election had expired, because by the end of January 2001 - - -

GUMMOW J: We appreciate that. The question is whether he had been yet put to the election. You may be right. That is the question. From whence do you begin to judge the period of reasonable time?

MR WHITEFORD: The period of reasonable time would begin to run from the date of death. The issue which was resolved against Mr Ruthenberg was when it expired, your Honour.

KIRBY J: I would begin to get the trembles if we have to try and sort it out on the evidence, but perhaps the thing that the Court would do if leave were granted would be to correct any legal error on election and send the matter back to be redetermined by the Supreme Court.

MR WHITEFORD: I have no submissions on that. The issue of election as such has never been agitated until now.

KIRBY J: We do not get many nice will cases, Mr Whiteford. I mean, in the old days the reports were full of them, and this is a distinctly arguable point. The question is whether or not you can persuade us that it is not an appropriate case or that the Court of Appeal is clearly right. It does not seem to me that it is clearly right.

MR WHITEFORD: I cannot advance it beyond that which is in the outline. It is not a question - - -

KIRBY J: As the applicant points out, the testator did not say “both of them”, or words to that effect.

MR WHITEFORD: No, your Honour.

KIRBY J: Just used “them”.

MR WHITEFORD: That is right. There is no doubt about that.

KIRBY J: Is the strength of your case the practicality of running the farm as a totality and unity and that that becomes much more difficult once you have the theory that the applicant is propounding?

MR WHITEFORD: That is certainly a point.

GUMMOW J: Where do we get this notion out of the will that this was to be run as a joint enterprise?

MR WHITEFORD: That was practically common ground - - -

GUMMOW J: I am not - - -

MR WHITEFORD: I cannot assist your Honour beyond that.

GUMMOW J: How does it appear from the will?

MR WHITEFORD: It does not - - -

GUMMOW J: Exactly.

MR WHITEFORD: - - - appear from the terminology in the will.

KIRBY J: Well, except that the testator has this property and by inference, by making this specific provision to not immediate relatives, is highly desirous – I would draw the inference that he is highly desirous of keeping it together. I mean, that is a very well-known phenomenon. It goes back to medieval if not biblical times.

HAYNE J: It is called joint tenancy, not tenancy in common.

MR WHITEFORD: Could I address one further matter to the Court - - -

GUMMOW J: And why is this intention fixed upon the property in clause 10? There is a whole series of specific devises. He was breaking up his landholdings.

MR WHITEFORD: Yes, but “Rossgae”, on the evidence which was before the court, was bought shortly before his death and was conducted separately.

GUMMOW J: Yes, very well. Now, what is the position about costs here? There seem to be two sets of costs. You appear for the executrices, do you not?

MR WHITEFORD: I do.

GUMMOW J: And you have been taking an active part?

MR WHITEFORD: We have.

GUMMOW J: And is that duplicated by your colleague’s involvement?

MR WHITEFORD: With the greatest respect, I would have to allow Mr Amerena to answer that. Insofar as he is merely supporting - - -

HAYNE J: Well, you are appearing for the executors of the will and part of the function of the executor, I would have thought, would be to preserve the estate.

MR WHITEFORD: That is so. Insofar as - - -

HAYNE J: Therefore, to have a submission to make about whether costs properly fall on the estate of separate representation, these are not matters to be simply slid off.

MR WHITEFORD: Indeed, your Honour. As I was going to submit, insofar as Mr Amerena is merely supporting the executors, then there ought to be only one set of costs from this side of the record. Insofar as he can convince the Court that there is some separate issue separate from the executors which he needs to represent, then, as I say it is - - -

HAYNE J: And what is the submission of the executors?

MR WHITEFORD: That there ought to be only set of costs. Before leaving the point, could I also direct your Honours’ attention to one other impracticable - - -

GUMMOW J: Well, was that submission put below?

MR WHITEFORD: Which submission, your Honour?

GUMMOW J: As to one set of costs.

MR WHITEFORD: I do not believe so, your Honour, no. I cannot recall submissions being invited on the point.

KIRBY J: What is the size of the estate?

GUMMOW J: They do not have to be invited.

MR WHITEFORD: I am sorry, your Honour.

KIRBY J: What is the value of the estate and of the order? Just roughly.

MR WHITEFORD: That appears from the outline of argument of the first respondents. It is about $1 million, I think, your Honour.

GUMMOW J: Is that right?

HAYNE J: No, it is not.

MR WHITEFORD: The list of assets is on paragraph 5. Sorry, it is about $2 million.

GUMMOW J: Yes. Well, that is a probate valuation, is it not?

MR WHITEFORD: I could not answer that question. Could I address - - -

GUMMOW J: Anyhow, it will not be overvalued at 2 million.

MR WHITEFORD: I cannot address that question, your Honour. Could I draw your Honours’ attention to one further matter of impracticability which flows from the contention for which Mr Ruthenberg seeks. If one
half of the gift falls into residue, a question arises as to who is liable or responsible for the debt attaching to that half. Mr Ruthenberg has submitted that upon his accepting the condition, he is responsible for one half of the debt, but that is because he has accepted the condition. An issue arises as to who has to bear the liability for the other half. Is it foisted on the residuary beneficiary simply because it falls into residue, or is that one half distributed across the balance of the estate proportionally? Now, that is yet another issue which, with respect, is proper to take into consideration and is a further indication - - -

GUMMOW J: Well, it involves the application of section 61, I suppose.

MR WHITEFORD: Yes, accepting that section 61 is difficult to apply because - - -

GUMMOW J: Well, that may be right.

MR WHITEFORD: But the difficulty of the application of section 61 and the decision as to who bears that remaining half is a further indication, it is submitted, that it was the testator’s intention that it be of both or neither. Can I assist your Honours any further?

GUMMOW J: Thank you.

MR AMERENA: I will deal with the construction point first. In my submission, another object that can be discerned from the terms of the will was a desire to charge “Rossgae”, the property the subject of clause 10, with all the debts of the estate, so that the specific devises which were made in the - - -

GUMMOW J: It was not charging the property, was it? Is it not subject to them accepting?

MR AMERENA: That is right. Once they accept though, in my submission, “Rossgae” - - -

GUMMOW J: That is an acceptance of some personal obligation owed to the estate.

MR AMERENA: And “Rossgae” would be charged in equity, vis-à-vis the other beneficiaries. The devisees of the properties earlier mentioned in the will would be able to take those properties without reference to any debt. Now, that is, of course, additionally the reason why a contrary intention appeared for the purposes of section 61 of the Succession Act. If that is the intent in the will, in my submission, the construction contended for by the first and second respondents that the acceptance of the liability has to be joined, notwithstanding that the gift is made on a several basis, is a very open conclusion and it is confirmed, in my submission, by the language used, meaning by “them”, “them” is a personal pronoun. It is the plural form of a personal pronoun.

GUMMOW J: You may ultimately be correct about this, but to be perfectly frank with you what worries me is that at no stage has the party who in the end may fail had the advantage of a reasoned decision on these points.

MR AMERENA: Well, it is probably going to take too much time - - -

GUMMOW J: One of the obligations arises from the judicial system is the notion that you will find out why you lost.

MR AMERENA: Realistically today, for me to attempt to defend a decision of the Court of Appeal and her Honour’s decision at the primary level as being a reasoned decision would take a fair while. I mean - - -

GUMMOW J: We have just been debating questions that are not mentioned. That is all I was suggesting to you.

MR AMERENA: Of course it is probably fair to say too that some of the sparsity - - -

GUMMOW J: After all, your colleague was there to uphold the will on these questions of construction and to assist.

MR AMERENA: It is probably fair to say though, your Honour, in respect to what might be regarded as the sparsity of the reasoning in the two decisions below, that that was affected to some degree by the concessions made on behalf of the applicant, particularly at the trial, and they were properly made.

GUMMOW J: Well, they were relevantly concessions of law, were they not?

MR AMERENA: Yes.

GUMMOW J: Yes, by a litigant in person, who does not read - - -

MR AMERENA: He was represented, of course, at the first instance level.

GUMMOW J: But not in the Court of Appeal.

MR AMERENA: That is true. Might I quickly turn to the election point, please?

GUMMOW J: Yes.

MR AMERENA: At the trial it was put in respect of this matter that the time limit associated with accepting the liability under clause 10 really involved an assessment of whether or not the co-devisees concerned had a fair opportunity to assess the risk involved in accepting both the burden and the benefit and that once they had their opportunity time was up. They had to - - -

GUMMOW J: What do you mean by “fair”?

MR AMERENA: Well, it is a very difficult question but, for instance, he had to understand at least the issues involved in the proper construction of the will and so, for instance, in the trial below it transpired that he had obtained senior counsel’s advice as to the proper construction of the will on the matters touching clause 10 and, in fact, had come into a copy of an advice which had been given to my client, the second respondent, of which I was the author. So he had two advices. He said his heart did not agree with them, so he did not follow it.

So that was one issue. It relates to being informed. It is the degree of information, if you like, that is always going to be in issue about whether he has had a fair opportunity. Now, in my submission, it cannot be that a person in a situation like this can elect to wait until after the Court of Appeal’s decision to decide whether or not he will accept the benefit of a gift. He gets a fair opportunity to assess the risk and then he must take the risk. That is the issue.

GUMMOW J: Is there authority to that effect?

MR AMERENA: I have not been able to find any, your Honour. I did look.

GUMMOW J: This is a problem that would not be unique in the administration of estates, I would think, or generally in questions of election.

MR AMERENA: I cannot say it is unique, but I can say that most - - -

GUMMOW J: I mean election in the strict equitable sense.

MR AMERENA: Yes. Most clauses like clause 10 though make time of the essence and so you will generally find that there is a specific time. Here it is a little bit unusual in the sense that clause 10 was not of the essence, so it is a reasonable time. I suppose every case turns on its own facts, and in that sense it is going to be unique, but, in my submission, it is not unique from the point of view it needs the intervention of the High Court because it is a matter of public importance in the general administration of justice.

As to the costs matter that was raised, the history of the matter is this. My client, the second respondent, was agitating that the executors take the course, that is treat the gift as lapsed, because she had indicated to them that Mr Ruthenberg would not accept and she wised that the administration of the estate continue on the basis that the gift in clause 10 had lapsed. She, of course, at the same time brought an application, as she was entitled to do, for testator’s family maintenance because she was not adequately provided for out of the estate.

GUMMOW J: Now, what is the position with TFM at the moment? Is there some pending application?

MR AMERENA: It has been concluded.

GUMMOW J: Yes.

MR AMERENA: A judgment at first instance, which has not been appealed, was given and an order, in effect, paying my client $500,000 in addition to her entitlement where she got apportioned 37 has been made.

GUMMOW J: And that will come out of residue, will it?

MR AMERENA: That is right, your Honour.

GUMMOW J: That TFM order?

MR AMERENA: Yes. So she gets served with the originating application. I am only - - -

KIRBY J: That was made on the premise that she did not take under the will.

MR AMERENA: It was designed to test that question as to whether or not she was right in asserting what she was asserting, that is that as far as she was concerned the gift had lapsed because she did not want to accept the burden.

KIRBY J: I realise that, but there was then still pending these proceedings, which are now before this Court. What happens in the event that the applicant succeeds in this Court to the order of the court made under the Family Provision Act?

GUMMOW J: One does not ordinarily have a TFM when there is a construction debate going on and unresolved, does one, because the footing on which the order is to be made is not established?

MR AMERENA: Well, that is not quite right, in my submission, because there was a decision at first instance as to the true meaning of the will, right or wrong. There was a decision of the Court of Appeal as to the true meaning of the will, right or wrong.

GUMMOW J: At what stage was the TFM order made?

MR AMERENA: The TFM order was made after the decision of the Court of Appeal.

GUMMOW J: I see.

KIRBY J: It just assumed that we would knock this out.

MR AMERENA: There was still no application for a stay.

KIRBY J: You should not ever make that assumption, whilst cases are still pending in the judicature. As Justice Gummow has pointed out, the premise of an order under family provision law is that the person has not had adequate provision under the will, and that is the very point that is before this Court.

MR AMERENA: All I can say in my submission is there would be concerns as to the outcome. Really, they should only be given effect to, if estate had been - - -

GUMMOW J: Well, if there is an adverse outcome, it cannot be visited on the party who had invoked this Court’s intervention which is pending.

KIRBY J: We have got ourselves into a bit of a mess, but it is your mess, not ours, however.

MR AMERENA: Yes. Beyond saying there should have been a stay granted before the administration of the estate stopped, I cannot say anything further.

GUMMOW J: It is getting more and more like a visitation case.

MR AMERENA: Yes.

GUMMOW J: Very well.

MR AMERENA: Thank you.

GUMMOW J: Yes, Mr Ruthenberg. Come to the microphone, if you would. This needs to be recorded. Yes, I think it can be taken down from where you are.

MR RUTHENBERG: This one here, yes.

GUMMOW J: Yes. Now, you have heard what has transpired. At the moment we are concerned that you may have some substance in your complaints in the grounds at page 35 of the draft notice of appeal. If we were to grant special leave, however, the draft notice of appeal would need to be revised to put in proper legal form the ideas that are there expressed and - - -

KIRBY J: Take out some of the adjectives.

GUMMOW J: Yes, and I hope it become apparent to you this morning that there are quite technical legal questions involved in all of this in which we would really need the assistance of counsel appearing for you. To that end, we would really require either counsel of your selection and financing or, depending on your circumstances, counsel provided on a pro bono basis by the Queensland Bar Association.

MR RUTHENBERG: Yes, your Honour.

GUMMOW J: Do you appreciate what I am saying to you?

MR RUTHENBERG: Yes, your Honour. Would I be able to say a few words?

GUMMOW J: Yes. That is why I have said what I have said to you, so you can respond.

MR RUTHENBERG: Yes, that is very good, your Honour. Just as far as I can see, I am only a farmer, but there are two beneficiaries: the respondent and the applicant, myself. So if it is in equal shares, it should mean a half share each. Clause 10 was left as tenants in common. So if you please turn to my list of authorities there on the first page. It has there from “The National Will Kit”, legal throughout Australia, by John C. Howell, it states that:

Tenants-in-common: A type of ownership where each person owns a share of a property, with no interest in the other’s share.

Therefore, if I am the applicant, I have no interest in the other share. It is the applicant’s sole duty to respond to their own share.

GUMMOW J: We understand that, Mr Ruthenberg. We understand what your argument is, but what I am saying to you is at the moment you are pushing against an open door, but the opening of the door is contingent upon, as we see it at the moment, the provision of counsel to assist us in these matters at the appeal hearing.

KIRBY J: As you have said, you are a farmer. If a barrister went into a farm, almost certainly most of them would muck it up. Similarly, this is a technical question and we really need to have the help of a skilled person. You would understand that in your own activity.

MR RUTHENBERG: Yes, I do, your Honour.

KIRBY J: Now, if you have the funds, then you ought, at least if you are given special leave, at this stage to assist the Court and yourself by getting a barrister for the day of the argument of the case. If you do not have the legal funds, then you could talk to the Registrar of this Court and the Registrar would talk to the Queensland Bar Association and see if they could provide a barrister to help you pro bono without cost to you. Now, are you agreeable to taking one or other of those courses? Because if you are just going to come down here and talk to us as a farmer, I am afraid it is not going to help us very much, and it is a technical question.

MR RUTHENBERG: Yes. Well, I have got three or four problems with that, your Honour. It is because they have already sold the whole gift. It has already gone. There is no liability. There is no gift. It is all sold up. Every piece of my gift is gone. As far as I can see, by the time I come back there will be nothing there to get, and that is my major problem. That is why I actually have the title searches there. While we are arguing over it, there is nothing left. That is why I was arguing that the second respondent, she has no rights to argue – she has no interest in my share and, therefore, it should be a question of locus standi. She has never had any - - -

GUMMOW J: Just explain to us the title situation, if you would, the current title searches.

MR RUTHENBERG: The current title searches. It was sold – where is the date there – 31 May 2004, and the new owner is Terry Ray Roth and Helen Maree Roth. That is my bequest that was left to me. There is five searches there. They line up with the will. If you have a look on page 2 of the will, they line up with clause 10, part (a). That was only four weeks ago the property was sold. That is the complete – the whole lot of it was sold. All the livestock, all the mill timber, all the machinery and all the land, and it was a fair way – more than $2 million worth. As far as I can see, that is not going to be there when I come back to get it.

GUMMOW J: This raises very serious questions, Mr Ruthenberg, from the Court’s point of view. These things should not happen while there is a pending – what was the date of your application to the Court? It was 23 July – it was a bit earlier, was it not? 6 June 2003.

MR RUTHENBERG: Yes, your Honour.

KIRBY J: So whilst this matter was pending and when it was about to be heard in the court, you say that the title to the property has been transferred, presumably, by the executrices?

MR RUTHENBERG: Yes, your Honour.

KIRBY J: That is not satisfactory. That will have to be explained to the Court.

MR RUTHENBERG: It actually started right from the day of death and they started selling it off before I was even notified that I was in the will, and they commenced selling the cattle and they sold it piece by piece. They sold all the cattle and then they sold all the machinery, all the timber off the property and then they sold the property. The full way along I actually objected to all of it – but anyway. It just went ahead and it happened and I was unable to stop it without huge expense.

GUMMOW J: Yes, we understand that. Would you just sit down for a minute, Mr Ruthenberg?

MR RUTHENBERG: Thank you, your Honours.

GUMMOW J: We will take a short adjournment.

AT 10.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.20 AM:

GUMMOW J: Yes, Mr Whiteford, anything you want to say in reply?

MR WHITEFORD: In reply, your Honour, I say this. The point about election which has been raised has been raised for the first time today and that really means that this is not an appropriate vehicle for that point to be agitated on appeal. That would be the first submission I make.

Mr Ruthenberg raised some matters before, your Honour, about the disposition of cattle and the like. One is forced then to descend into giving evidence from the Bar table. I sought instructions during the adjournment. Issues would be raised as to whether or not cattle had to be sold by reason of drought, et cetera. One would not necessarily, it would be submitted, find any mala fides on the part of the executors in doing that. Now, concerning the - - -

GUMMOW J: And the change in the title to the land?

MR WHITEFORD: I sought instructions on that. That was to satisfy the TFM judgment, on my instructions, your Honour.

GUMMOW J: I see.

KIRBY J: That is just ignoring the proceedings before this Court.

MR WHITEFORD: I had no part of it, your Honour. Obviously that is the practical effect of it, that it was paid notwithstanding these pending proceedings.

KIRBY J: I have not formed any view at all, and I do understand how things have developed, but at least possibly what has happened amounts to a contempt of this Court, taking proceedings on an assumption that the Court would not grant special leave to the applicant who was before the Court and who had invoked our jurisdiction.

MR WHITEFORD: Yes.

KIRBY J: So it is at least arguably or possibly a serious matter.

MR WHITEFORD: I have no submissions I wish to make either way which could assist your Honour - - -

GUMMOW J: Well, if we granted special leave, we would be assisted by the provision of an affidavit from the executrices explaining the situation in response to what has been said from the Bar table this morning.

MR WHITEFORD: I think that would be essential.

GUMMOW J: Yes, very well.

MR WHITEFORD: There may be an explanation. As I say, I was only able to seek brief instructions.

GUMMOW J: Yes, we understand that.

MR WHITEFORD: Can I assist your Honours any further?

GUMMOW J: Not at the moment.

MR AMERENA: I have nothing to say, your Honours.

GUMMOW J: Very well.

MR RUTHENBERG: May I say something, please, your Honours?

GUMMOW J: Yes, Mr Ruthenberg.

MR RUTHENBERG: I am actually very concerned about the money that has been sold – for all the stuff that has been sold, because it seems to be unaccounted for, for hundreds of thousands of it, and I am just very worried that – to try and keep that in order, so it actually stays somewhere. I am also worried about the – the cost orders are still proceeding against me for the first two cases and I would like to have a stay or something to try and help that for me in the meantime, if that is possible. Thank you, your Honours.

GUMMOW J: What do you say, Mr Whiteford, on the proposition that we should stay any implementation of any cost orders presently made in this litigation against the applicant for special leave, pending the disposition of the appeal?

MR WHITEFORD: Should special leave be granted, I would submit that that is an appropriate order.

GUMMOW J: Yes. That seems appropriate, does it not?

MR AMERENA: Yes, that is correct.

GUMMOW J: Very well. There will be a grant of special leave in this matter. There will be a stay of the implementation of the cost orders presently made in this litigation against Mr Ruthenberg in the Supreme Court of Queensland and in the Queensland Court of Appeal, the stay to be effective pending the disposition of the appeal or earlier further order.

The grounds of appeal presently set out in the application book commencing at page 34 require revision, as indicated in the course of argument this morning. We would expect Mr Ruthenberg to approach the Registrar of this Court for assistance in an approach to the Queensland Bar Association for the provision of senior and junior counsel on the hearing of the appeal to this Court. We emphasise to Mr Ruthenberg the supreme importance of proceeding in that fashion and the absolutely imperative nature of us having that assistance, particularly in the light of what has emerged this morning.

The executrices may avail themselves of the opportunity to provide on affidavit any response they wish to make to the matters raised this morning as to the state of the administration of the estate and, in particular, the steps taken in that administration after the making of the testator’s family maintenance orders on 5 March 2004 whilst there was pending the special leave application, which has now been successful in the grant of special leave.

We would also expect no further steps to be taken to implement that testator’s family maintenance order made pursuant to the provisions of the Succession Act pending the disposition of the appeal.

MR AMERENA: Excuse me, your Honour. From the point of view of my client, because Justice Kirby has mentioned that there is an arguable contempt, we are in a slightly different position than what you would normally find yourself in a wills case. I make no bones about it. My client was in a parlous financial circumstance and pressed to be paid her judgment under the TFM.

KIRBY J: Yes, but the question is whether the judgment under the TFM provision should have proceeded as far as they did whilst there was pending in this Court a matter which affected the administration of the estate and the true meaning of the will and whether there was inadequate provision under the will. All of those matters are bound up in the application which was pending and which, with all respect, at least on the face of documentation, the Court would be willing, or could be entitled to conclude, has just been dealt with on the assumption that the Court would brusquely throw the applicant out. Well, that is not the way justice is administered in this country.

MR AMERENA: Well, I mean I have made my submission about the stay, but I am just concerned that my client get an opportunity - - -

GUMMOW J: Indeed, yes. That opportunity indicated to the first respondent would extend also to the second respondent.

MR AMERENA: Thank you, your Honour.

GUMMOW J: I do not think there is anything else, gentlemen. We would assume that the matter would be a one day case. It is important to understand that in granting the leave to appeal, what we will be doing at the appeal will be establishing whether there has been any error in the construction of the will which provides the proper basis for the administration of the estate. What would happen thereafter would be another question – perhaps through other proceedings, I do not know. What we will be doing will be entertaining an appeal from the construction suit in the Court of Appeal of Queensland, plus we will be assisted by these affidavits to quieten any concerns we may otherwise have on this other question. At the moment there is no formal application for an order of a contempt nature.

AT 10.29 AM THE MATTER WAS CONCLUDED