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Supreme Court of Victoria |
Last Updated: 1 December 2020
AT MELBOURNE
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NICOLE BROWN (who is sued as Executor of the Will of ANITA GERTRUDE
STEINER, deceased)
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Second Defendant
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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PRACTICE AND PROCEDURE — Dismissal for want of prosecution — Proceeding under Part IV of the Administration and Probate Act 1958 (Vic) for family provision from the estate of the deceased former partner of the plaintiff — Inordinate delay — Whether delay excusable — Whether defendants prejudiced by the delay — Whether the merits of the claim should be a factor in the application — Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863; Sullivan v Greyfriars Pty Ltd, [2015] VSCA 196.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Clancy & Triado
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For the Defendants
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Arnold Bloch Leibler
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1 The defendants apply to dismiss this proceeding for want of prosecution. Specifically, by summons filed on 16 July 2020, the defendants apply pursuant to Rule 24.01(b)(ii) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) and the Court’s inherent jurisdiction, further or alternatively, pursuant to Rule 24.05 of the Rules, that the proceeding be dismissed and there be judgment for the defendants accordingly.
Background Facts[1]
2 The defendants are the executors and trustees of the estate of Anita Gertrude Steiner, deceased (the ‘deceased’ or ‘Anita’). The deceased died on 12 November 2011. On 10 January 2012, the defendants were granted probate of the deceased’s will dated 13 October 2011 (the ‘Will’).
3 The plaintiff is the former domestic partner of the deceased. He and the deceased had one child together, Emma Sarina Frances Lemmens-Steiner (‘Emma’). Emma was born in 2008. Anita had no other children. By her Will, Anita gave the residue of her estate to the Emma Sarina Frances Lemmens-Steiner Testamentary Trust (‘Emma’s Trust’), on the terms set out in Schedule A of the Will. Those terms include that until Emma reaches the age of 18, the defendants will jointly be the trustees of Emma’s Trust. The Will also provides that if the plaintiff does not survive the deceased, then she appoints the second defendant as the guardian of Emma.
4 The Will provides that the deceased consciously made no provision for the plaintiff in the Will because:
(a) she felt a much greater obligation to Emma and Emma has a much greater financial need;(b) the plaintiff did not assist her in accumulating her assets;
(c) at the time of making her will she and the plaintiff were permanently separated and had been for over six months; and
(d) for other reasons she did not wish to specify which are set out in the supporting documentation for the Intervention Order.
5 Anita left an estate which was valued for Probate at $1,436,362. The estate comprised two residential properties, 2/66 Riddell Parade Elsternwick, valued at $520,000, 1/10 Boxshall Street, Brighton, valued at $690,000 and personal property which included two motor vehicles. After her death, Anita’s estate received her superannuation of $178,339.54, a large part of which comprised the proceeds of a life insurance policy.
6 By originating motion filed 26 June 2012, the plaintiff made a claim against the defendants for family provision pursuant to Part IV of the Administration and Probate Act 1958 (Act). The defendants filed their appearance on 3 July 2012. On 17 July 2012, the plaintiff filed an affidavit in support of his claim made on 21 June 2012. On that day, 17 July 2012, orders were made for the conduct of the proceeding up to a mediation.
7 The principal affidavit in support of the application to dismiss the proceeding was made by Simon John Dollard, solicitor.[2] In it, he lists the affidavits he understands to have been filed on behalf of the plaintiff and the defendants. However, not all of those he lists have been filed with the Court. Further, having regard to the length of time since there was any activity on the file, it has been administratively finalised and the exhibits to the affidavits have either been returned to the parties’ solicitors or destroyed.
8 The defendants are said to have filed 10 affidavits. Only the last listed is not on the Court file. They are as follows:
(a) an affidavit of the first defendant, Julie Rochelle Davis,[3] who was the best friend of the deceased. She deals with a wide range of matters, including the relationship of the deceased with the plaintiff and, as she depicts it, his sometimes appalling behaviour towards the deceased which led to their separation in about April 2011;(b) two affidavits of the second defendant, Nicole Manuela Brown,[4] who is a first cousin of the deceased. The first affidavit sets out her observations of the relationship between the plaintiff and the deceased and the stress the plaintiff caused the deceased. The second is an affidavit of the financial position of the estate;
(c) an affidavit of a friend, Jennifer Robyn Liza Duhnfahr[5] as to abusive behaviour of the plaintiff towards the deceased;
(d) an affidavit of a neighbour, Susan Margery Walking,[6] as to abusive behaviour of the plaintiff towards the deceased;
(e) an affidavit of a friend and relative (by marriage), Pamela Dawn,[7] as to the relationship between the plaintiff and the deceased, and its breakdown;
(f) an affidavit of a friend, Maria Costanza Edmonds,[8] as to the relationship between the plaintiff and the deceased and his abusive behaviour towards her;
(g) an affidavit of a friend, Katherine Sarah Levi,[9] as to the relationship between the plaintiff and the deceased, his abusive behaviour towards her and circumstances leading to the making of a family violence intervention order against the plaintiff;
(h) an affidavit of a friend, Fiona Reizner,[10] as to the relationship between the plaintiff and the deceased and his abusive behaviour towards her; and
(i) an affidavit of the deceased’s brother, Paul Gerald Steiner. There is no indication that this affidavit has been filed.
9 Mr Dollard records that in addition to the plaintiff’s affidavit made on 21 June 2012, the plaintiff has served a further affidavit made on 29 November 2012 and the affidavits of Gordana Featherston, Jill Spitz and Lisa Jane Mugg, none of which are on the Court file.
10 As I have said, much of the evidence filed on behalf of the defendants concerns the nature of the relationship between the deceased and the plaintiff between 2006 and 2011, and the plaintiff’s behaviour and conduct towards the deceased and Emma during that time. An important feature of the evidence advanced by the defendants is that the deceased was Jewish and cherished the Jewish faith and culture. The plaintiff is not Jewish and there are indications that he did not relish the deceased’s faith. The evidence is particularly concerned with the later part of that period when the relationship clearly broke down, certainly from the deceased’s perspective, and the descriptions of the plaintiff’s behaviour towards the deceased depict him as angry, difficult, disagreeable and unpleasant.
11 A mediation was conducted in November 2012, but was unsuccessful. On 21 January 2013 the plaintiff’s solicitor filed a notice of ceasing to act, giving an address in the Netherlands as the address for service. Plainly, that was not effective as an address for service. On 15 February 2013, Mason Sier Turnbull, the solicitors for the plaintiff, filed an affidavit made by a Ms Olsson, solicitor, in support of an application for leave to file a notice of ceasing to act. She deposed that the plaintiff had not paid substantial costs and disbursements.
12 The plaintiff left Australia with Emma in early December 2012. On 9 December 2012, the defendants’ solicitors (‘ABL’) wrote to Mason Sier Turnbull to ask whether the plaintiff was on a holiday with plans to return to Melbourne or had departed the country permanently. On 12 December 2012, Clancy & Triado (then acting for the plaintiff in relation to family law matters) sent a letter to ABL which confirmed that the plaintiff and Emma had permanently relocated to the Netherlands.
13 On 19 March 2013, the Honourable Associate Justice Zammit made orders by consent, granting the plaintiff’s solicitors leave to file a notice of ceasing to act, specifically providing that the address for service of the plaintiff was Clancy & Triado Pty Ltd, and adjourning the further hearing of the application to a date to be fixed. No date was subsequently fixed. The plaintiff has not taken any step in the proceeding since those orders were made.
14 The plaintiff has not returned to Australia since leaving in 2012, so far as is known, and resides in the Netherlands with Emma. Between May 2013 and August 2018, the defendants, through ABL, made many attempts to engage with the plaintiff directly or via Clancy & Triado. The principal purpose of the defendants’ correspondence was to seek to make arrangements for provision for Emma. The last correspondence received by the solicitors for the defendant from the plaintiff during this period was by email dated 9 September 2013. After that email, ABL did not receive any response to its correspondence, until it received a letter from Clancy & Triado in November 2017. That letter confirmed certain letters had been forward to the plaintiff but they had received no instructions and concluded that they no longer held instructions in the matter.
15 On 29 August 2018, ABL sent the plaintiff a letter,[11] which enclosed copies of ABL’s previous correspondence, stated that they had not received any response, and then stated:
As set out in our previous correspondence, the executors remain willing to make monthly advancements for Emma’s maintenance and support (Support Payments). Our previous correspondence set out the information that the executors would require from you in order to determine an appropriate amount for such Support Payments, and we refer you in particular to our attached letter of 1 May 2013.In addition, the executors remain willing to provide funding for you and Emma to travel to Australia, so that Emma can spend time with her grandmother and other members of Emma’s and Anita’s extended family.
Please advise whether and if so when you would be prepared to make such a journey and arrangements can then be made to cover your and Emma’s reasonable expenses.
Once again we ask that you acknowledge receipt of our correspondence. Your continued silence raises the concern that you may not be receiving our correspondence.
16 On 6 May 2019, ABL sent a letter to the plaintiff in which they noted that the plaintiff had not taken any steps to advance the proceeding for over six years, that for as long as the proceeding was on foot the defendants were unable to finalise administration of the estate, that all the indications were that the plaintiff had abandoned the proceeding and asked the plaintiff bring the proceeding to an end by filing a notice of discontinuance by 14 June 2019. The plaintiff was put on notice that if he did not do so, the defendants would make an application to the Court to dismiss the proceeding.
17 On 14 June 2019, Clancy & Triado responded stating that they had been instructed by the plaintiff to pursue the proceeding. Between October 2019 and May 2020, ABL and Clancy & Triado engaged in without prejudice communications. Those communications did not lead to any resolution of the proceeding. In the course of those negotiations, in an otherwise privileged communication, Clancy & Triado wrote to ABL asserting that the delay by the plaintiff was not inexcusable, it was explained by and derives from the conduct of the defendants in Family Court proceedings.
18 The defendants say, rightly, that the presence of the claim continues to be an impediment to the finalisation and distribution of the deceased’s estate. Despite the plaintiff’s solicitors stating in June 2019 that they had instructions to pursue the proceeding and extensive correspondence exchange between the parties since then, the plaintiff has still failed to prosecute his claim. The plaintiff has lived in the Netherlands with Emma since December 2012.
19 The defendants rely on the Dollard affidavit and a further affidavit made by him which is put forward, without objection, as a confidential affidavit.[12] Dollard’s confidential affidavit deals with family law proceedings between the second defendant, on behalf of the deceased’s family, and the plaintiff, concerning Emma. It is confidential because of the restrictions in s 121 of the Family Law Act 1975 (Cth). The second defendant sought orders entitling her to spend time with Emma and to be involved in her life and to enable Emma to spend time with her extended family. The second defendant argued that the objects and principles of Part VII of the Family Law Act 1975 (Cth) contain a presumption that it is in a child’s best interests to have ongoing contact with his or her extended family and to enjoy his or her cultural heritage, in this case, a Jewish cultural heritage, with others of the same culture.[13] No more should be said about the proceedings other than that the application was unsuccessful.
20 Whilst the Family Court proceeding was current, indeed about 5 months after it was launched, the defendants applied to this Court for an order (or more properly judicial advice) approving the expenditure of estate funds for the payment of legal costs related to that proceeding.[14] The application relied on a power given by the Will of the deceased to advance and apply the whole or part of the income or capital of Emma’s share of the estate to her maintenance, education, advancement or benefit. The defendants contended that the commencement and maintenance of the Family Court proceedings was for Emma’s advancement because they were for the purpose of securing an ongoing relationship between Emma and her maternal family. In that proceeding there was no contradicter; that is, no person to advance the interests of Emma as the residuary beneficiary. The application was refused.[15] A later application for the costs of seeking the approval to be paid out of the estate was also refused.[16]
21 There was apparently a statement of wishes that the deceased left with her Will that is not in evidence before me, a fact which may be explained by the disposal of the original exhibits to the plaintiff’s initial affidavit. The statement was referred to in the course of the reasons for judgment given by McMillan J in Re Steiner, as follows:
In a statement of wishes dated the same date as her will and addressed to her executrices and appointors and trustees of the trusts established by her will, the deceased stated to whoever was the guardian of Emma that it was her wish that Emma remain in Australia because her family in Australia would support her; that if Emma did not remain in Australia the trust established by her will should pay for Emma’s travel to return to Australia to spend time with her family; and that Emma be provided with a Jewish education at a private Jewish day school. The statement of wishes was expressed so as not to be binding on the persons to whom it was addressed and with a hope that her wishes would be respected.[17]
22 The plaintiff relies on an affidavit sworn on 20 August 2020. The defendants object to parts of the affidavit, particularly those parts that refer to a confidential Family Report prepared for the Family Court proceedings, and to the Report as exhibited to his affidavit. Under the Family Court Rules 2004 the Family Court may release such a report to each party, or their lawyers, and to an independent children’s lawyer, receive the report in evidence, permit oral examination of the person making the report and order that the report not be released to a person or that access to the report be restricted.[18] The defendants submitted that no release order is before this Court, nor has any subsequent order of the Family Court been made permitting the disclosure of the Report. This Court cannot authorise its release.
23 The defendants also submitted that any probative value the Report might have in this application is substantially outweighed by the danger that the Report may be unfairly prejudicial, misleading or confusing, or cause or result in an undue waste of time: s 135 of the Evidence Act 2008. In particular, the affidavit of the plaintiff states, at paragraph [44], that the Report is put forward because it represents someone’s objective assessment of certain circumstances, and describes some tensions and emotions that the plaintiff says he was suffering during the Family Court litigation. As to this contention, the defendants submitted that:
(a) the events deposed to occurred 7 years ago and they cannot be relevant to the Court’s enquiry on the present application, which is whether the proceeding should be dismissed for want of prosecution and whether the plaintiff has any credible excuse for his extensive delay in prosecuting the proceeding;(b) the inclusion of the Report in the affidavit does not address the relevant question of why, after moving to the Netherlands in late 2012 and after the finalisation of the Family Court proceedings in 2013, the plaintiff still neglected to take any steps in the proceeding;
(c) assuming that evidence of the effect of the Family Court litigation had on the plaintiff is relevant (which the defendants deny), the best person to give evidence about that matter is the plaintiff himself, not a third-party consultant; and
(d) it is not clear whether the Report is offered up in this proceeding as expert evidence or lay evidence. If the answer is expert evidence, the plaintiff has not complied with Order 44 as to form, content, or timing.
24 In the circumstance that the plaintiff gave his own evidence of some of the matters dealt with in the Report, I concluded that quite apart from the objections referred to above, the Report was not helpful, bearing in mind the narrow focus of this application, and for that reason I would have no regard to it. Counsel for the defendant accepted that approach. Counsel for plaintiff accepted that this was an appropriate approach given that he did not advance the contents of the Report as being evidence of what it says, merely that it sets out someone else’s assessment of his mental condition and he says, ‘That’s how I felt’.
25 There were also extensive objections to many paragraphs of the plaintiff’s affidavit on a variety of grounds, including that the evidence was not relevant to this application, that the matter was comment or speculation or amounted to a submission. Rather than deal with the objections individually I proposed, and the parties accepted, that I would treat those parts that were irrelevant, comment, speculation or submission accordingly. Some of the evidence to which objection was taken were matters concerning the plaintiff’s understanding and belief, and were relevant to whether his delay is excusable. Other parts of the material objected to is background material common to both parties and the objections are misconceived.
26 The plaintiff was born on 4 September 1968. Anita was born in March 1962. They met at an Apple World Wide Developers Conference in San Francisco in August 2006 and fell in love. In December 2006, the plaintiff, who was then living in New Zealand, moved to Melbourne to live with Anita. In 2007, Anita was diagnosed as suffering from mesothelioma. She battled that condition and suffered pain for the remainder of her life, although in 2008 and 2009 she was believed to be in remission from the cancer. Emma was born on 4 December 2008, and during 2009, after her maternity leave ended, Anita returned to her employment working irregularly when she felt able to do so. Emma attended play group when both of her parents were working. In February 2010, the decision was made that the plaintiff would work four days a week so that he could take Emma to a Dutch playgroup on Fridays.
27 In October 2010, it was discovered that Anita was no longer in remission and that the mesothelioma had returned. During the remaining year of her life she received a variety of chemotherapy treatments, the last being in September 2011. In October 2011 she had surgery to reduce a build-up of fluid around her heart. She was admitted to palliative care in November and died on 12 November 2011.
28 The plaintiff gives evidence of deceased’s relations, including that her parents survived her but have since died and that she has two brothers, the size of the estate for probate purposes in 2012 and the history of his relationship with the deceased. The illness (mesothelioma) which resulted in her death both preceded and followed the birth of Emma. A considerable portion of her assets were derived from her entitlement to compensation as a result of a class action against James Hardie in late 2007. The treatment for her mesothelioma was intense. The plaintiff gives a fairly detailed account of the relationship, including the separation in April 2011, but maintains that although they were living in separate homes they continued to see each other regularly, and to have dinner together at restaurants and at each of our homes. They continued family outings with Emma. He refers to the deceased’s fear that he would take Emma to the Netherlands:
Anita began to fear that I might abscond with Emma, and she wanted her placed on the ‘Airport Watch list’. I had no plans to take Emma away from Anita, and there was no basis for Anita’s apprehension. She herself even said ‘I don’t think you would do that but it is my biggest nightmare’. So to put Anita’s fear to rest I agreed and signed documents necessary to give effect to this for a year. Anita did not sign the documents herself, and this matter did not proceed. Nor, due to Anita’s bad health, were we able to travel together.
29 After the deceased died, the plaintiff continued to look after Emma. His account of the events between the deceased’s death and the time he left Australia for the Netherlands shows that in his view the defendants were ‘strongly antipathetic’ towards him.[19] He had modest savings but no home of his own. He rented premises and paid for childcare for Emma whilst he worked. There were two residences in the deceased’s estate, but he was not permitted to use either of them to accommodate Emma and himself. He was allowed one hour in which to collect his belongings from the apartment that had been their home. It was then locked up until September 2012, when he was given limited access again to collect other belongings. The deceased had two vehicles used by them both, a Mini and a Toyota RAV 4. Neither car was made available for him to use.
30 The plaintiff’s claim in this proceeding was commenced in June 2012 and went to mediation in November 2012. The plaintiff says:
It was not possible to resolve my claim by mediation. Not only did it prove impossible to resolve my claim against the estate, but Anita’s family made claims which I regarded as endeavours by them to control Emma and me so I would be restrained from making independent decisions about our lives and be restrained from living anywhere other than in Australia close to Anita’s family. There were overt threats made after the mediation, that they would try to obtain orders in the Family Court having this effect. I drew the inference that I was being asked to surrender and share parental responsibility for Emma, and that any settlement of my claim was dependent upon my agreeing to this.[20]As a result of the treatment I had received at the hands of Anita’s family, the threats of legal action against me in the Family Court, and my inability to reach any agreement with them that would provide for me from the estate and enable me to house maintain and educate Emma independently and without interference from them, I made the decision to return to the Netherlands with Emma. I was motivated by the fact that there I would be able to earn an income, and I would have support from my own family (including my mother) to help me look after Emma, in particular, whilst I was at work. Even though I thought they had no legal basis when it came to their family law litigation I was also fearful that they would make good their threats of litigation in the Family Court, and that I would have to face long drawn out and financially crippling litigation in order to maintain my parental rights in relation to Emma. I left within weeks of the mediation failing to resolve my claim against Anita’s estate.[21]
31 He was ‘deeply traumatised’ by the events in the period from October 2010 to the deceased’s death in November 2011; by the hostility he had encountered from the deceased’s family, both on a personal level and in relation to their refusal to provide him with any financial assistance from the estate to help provide for Emma, and by the events at the mediation.
32 In the Family Court proceedings, Ms Brown sought orders, as the plaintiff understood, that Emma return to Australia and live in Melbourne, that Ms Brown and the plaintiff have joint parental responsibility for Emma’s long term care, welfare and development, that Emma live with Ms Brown each Friday between 6:00 pm to 8:30pm for the Shabbat dinner with her grandparents, that Emma live with Ms Brown each alternate weekend, and that Emma spend holidays with Ms Brown at designated times.
33 The plaintiff says that he discovered during the Family Court proceedings that Ms Brown was using the funds in the Estate to pay her costs. This was revealed when Ms Brown provided bank account statements for the trust, which showed that up to July 2013 more than $250,000 had been spent from the estate on legal costs.
34 In relation to the correspondence from ABL to the plaintiff regarding the defendants paying for Emma’s maintenance and support, the plaintiff says they asked for information so they could consider making payments to him for Emma. The request was for private details about Emma’s and his lives and circumstances, which he thought were none of their business, and he did not provide the information sought. He asked the executors if he could have Anita’s digital camera and video camera, so that he could take, and send to them, photos and videos of Emma. He received a reply, dated 29 May 2013, that
We and the rest of the Steiner family care deeply about Emma. We would love to receive a copy of any videos of Emma that you are willing to share. We understand that you also sought the digital camera. The camera is no longer an asset of the estate so we are unable to give it to you.
35 He could not bring himself to respond to the request for information made by or through ABL. In July 2013, ABL wrote to him saying that the executors had decided to make payments of $500 per month, commencing on 5 August, to him for Emma’s maintenance. In a letter of 12 August 2013, ABL wrote saying that ‘We also take the opportunity to restate our clients’ position that the negotiation of a sensible outcome in the Family Court proceeding ought not hinge on the resolution of your family provision claim in the Supreme Court.’ He got the message that, despite what was being said literally, in fact resolution of his claim for provision from Anita’s estate was, very much, intertwined with the ongoing proceeding in the Family Court. He says that, perhaps the inference he drew was wrong, but that was the message that seemed to be conveyed.
36 In September 2013, he sent ABL details of his bank account and monthly deposits of AU$500 from the defendants commenced. He had no money to continue paying Melbourne lawyers, and ceased giving them instructions. ABL continued to write directly to him, sending letters dated 16 September 2013; 31 October 2013; 20 December 2013; 10 February 2014; 7 October 2014; 19 November 2015; and 24 October 2017. His mother died on 21 July 2016, having outlived his father, and this added to his personal difficulties during this period.
37 He was spurred into action by the letter from ABL dated 6 May 2019 (see above at [16]) and re-engaged Clancy & Triado who responded on his behalf on 14 June 2019 (see above at [17]). Following that there were negotiations which did no resolve the proceeding.
38 Since arriving in the Netherlands, the plaintiff has been devoted to being the best parent he can be to Emma. He says that Emma has had more than her fair share of trauma and grief. She lost her mother before she was three years old. In 2018 she lost her Oma (his mother) and in 2016 she lost her Opa (Anita’s father, I assume) and recently in April 2020 she lost her Nonna (Anita’s mother, I assume). Emma is a resilient bright young girl, who has finished Group 7 at school. She has wide interests and participates in many after-school activities ranging from pottery to theatre. She takes music lessons where she learns the alto and soprano recorder. She has taken up snorkeling (obtaining diplomas). She completed a bee keeping course and she now has her own mini beehive and has harvested many jars of honey. This year she wants to join a gymnastics club.
39 The plaintiff says that, notwithstanding this, Emma has still not resolved her mother’s death in her mind and she has been under the care of a child psychologist to help her with her loss and grief issues. She has recently been diagnosed with Attention Deficit Disorder, and has needed some further professional assistance in understanding her reaction to events and how best to support her.
40 As to his own condition, he says that after the family law proceedings finished in 2013 he suffered from all the traumatic experiences he had endured during them and he had grief and loss counselling and EMDR therapy to process all psychological trauma he endured (which he is now on top of). Counsel for the plaintiff explained the EMDR therapy is ‘Eye Movement Desensitization and Reprocessing’ therapy. In late 2018, he was diagnosed with Attention Deficit Disorder which he has had his whole life. The very same condition that Emma has been diagnosed with, and which is now being addressed. He is on a waiting list for treatment and medication and is due to commence it in September. This should help with his concentration and focus.
41 In the past year he has had Sacroiliac joint lockup and back problems which made it very difficult and painful for him to walk, lie on his back, sit down and do everyday things. It also made it very difficult to sit down behind a computer and type. Through physiotherapy exercises his physical health has largely been restored, although he still has to be careful.
42 He says that he is now in a position to devote attention to this case and prosecute it with the due diligence required. Emma is now moving into Group 8 of primary school, following which she will move to secondary school in the Netherlands. She is now 11 years of age and gaining in independence, which frees up his time.
43 He relies on a very modest income which he generates partly from some employment he receives as a computer programmer, and from government benefits. These total approximately €1,800 per month (approximately €400 per week). From this he pays over half in income tax and rent (€925 per month). The balance, of approximately €200 per week is all he has to feed, clothe and support Emma and himself.
44 He says he owns no other property apart from personal possessions. He has no investments. He does not own a motor vehicle and his superannuation is locked up until pension age and cannot be touched. He has just finished paying off the funeral home debt for the burial of his mother (which took him over two years).
45 He accepts that he has not prosecuted this claim with proper diligence. He says that the reasons for this lie in the history of his life whilst with Anita, her advancing illness and failing health, and during the last year of her life after her oncologist discovered in October 2010 the recurrence of the mesothelioma. He was left traumatised by Anita’s death, and the events over the months and years following her death served only to aggravate his condition. If permitted to continue with the claim he undertakes, in effect, not to delay the next steps.
46 My interpretation of the plaintiff’s evidence, so far as it concerns the reason why he did not advance this proceeding after the end of 2012, is that he was left traumatised by Anita’s death and the events over the following months and years aggravated his condition, he had limited financial resources, he was very upset by the treatment he received from Anita’s family and friends, particularly Ms Brown pursuing the Family Court proceeding, and the difficulties he faced caring for Emma and his parents in the Netherlands. Perhaps the most significant factor is the psychological or psychiatric disturbances and his attention deficit disorder, compounded by a sense of acute resentment at the treatment he received from Anita’s family and friends, particularly through the Family Court proceeding.
Want of prosecution principles
47 The power of the Court to dismiss a proceeding for want of prosecution is (as in the case of dismissal for other forms of abuse of process) incidental to the jurisdiction of the Court to hear and determine the proceeding.[22] Rule 24.05 preserves the Court’s inherent power to dismiss a proceeding for want of prosecution,[23] and provides:
Nothing in this Order affects the inherent power of the Court—(a) to dismiss any proceeding for want of prosecution; or
(b) to order that upon the failure of a party to do any act or take any step which under these Rules the party is required to do or take or to comply with an order that the party do any such act or take any such step the proceeding shall be dismissed or the defence struck out and that judgment may be entered or that there be judgment accordingly.
48 The defendants also rely on r 24.01(1)(b), which provides:
The Court may order that a proceeding be dismissed for want of prosecution if the plaintiff—(a) ....
(b) does not within a reasonable time after the commencement of the proceeding—
(i) file and serve notice of trial; or(ii) apply to have a date fixed for the trial of the proceeding; or
49 In Bishopsgate Insurance[24], the Court of Appeal, after careful consideration of the authorities relating to the dismissal of proceedings for want of prosecution, adopted the statement of principles given by Lord Griffiths in Department of Transport v Chris Smaller (Transport) Ltd[25] as follows:
The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been an inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants, either as between themselves and the plaintiffs, or between each other, or between them and a third party.
50 The Court in Bishopsgate Insurance also considered three aspects of those principles that were raised in the course of the argument in that Court:
(a) the extent to which the Court should take into account on an application to dismiss a proceeding the effects on the Court’s lists and resources likely to have been caused by the plaintiffs’ delay;(b) whether the Court should only have regard to the time which has expired since the plaintiff chose to issue its writ because it was entitled to wait until almost the expiry of the limitation period before issuing it; and
(c) the absence of evidence as to prejudice making it impossible for the Court to infer prejudice either as to the risk of not having a fair trial whenever that may occur or as to the burden which the defendant must be under by being kept at risk in relation to a claim of the kind advanced.[26]
51 In relation to the first matter, the Court considered that in an application for dismissal for want of prosecution, as distinct from applications made relating to the fixing, adjourning or hearing of a trial or an appeal, and the effect thereon of the granting or refusing of orders to amend, to adjourn or to call additional evidence, the orderly management of the Court’s business is not ordinarily relevant to any decision whether a proceeding should be dismissed for want of prosecution upon the basis of delay.[27]
52 In relation to the second matter, after a review of the authorities, the Court adopted Lord Griffiths’ remarks in Chris Smaller (Transport):[28]
...that long delay before the issue of the writ will have the effect of any post-writ delay being looked at critically by the court and more readily being regarded as inordinate and inexcusable than would be the case if the action had been commenced soon after the accrual of the cause of the action. And that if the defendant has suffered prejudice as a result of such delay before the issue of the writ, he will only have to show something more than minimal additional prejudice as a result of the post writ delay to justify striking out the action.
53 The third matter raised was the manner in which and the extent to which prejudice must be directly proved. The Court in Bishopsgate Insurance concluded that although there are many cases in which the necessity to establish prejudice has been stated as a condition precedent to the exercise of the power to dismiss for want of prosecution on the basis of delay, it is not correct to say that the defendant is obliged to allege that prejudice upon affidavit as opposed to asking the court to infer from all the circumstances of the case that prejudice has been or will be likely to be suffered. This is not to deny that prejudice, actual and potential, must be established: it is merely a reminder that proof of any issue can be established by circumstantial evidence and of the necessary process of inference from such evidence. The defendant is entitled to point to undisputed facts and ask the court to draw necessary logical inferences from them for this purpose.[29]
54 The Court in Bishopsgate Insurance added that the analysis of prejudice involved looking at each of the elements of prejudice asserted and examine the time at which it is likely to be suffered, always making due comparison between prejudice which the defendant has suffered or will be likely to suffer because of inordinate and inexcusable delay and any prejudice it might have suffered in any event. So far as likely prejudice of the conduct of a fair trial is concerned, the critical time is the time at which the action is likely to be heard. In the case of prejudice resulting from a defendant being kept at risk in respect of the subject matter of the action, the relevant period will extend from the time the action is brought to the time that it is likely to be heard. In each case, due allowance should be made for the time which any action will ordinarily take to reach final determination.[30] The Court added:
Relevant prejudice must in these circumstances extend to that which will be likely to be suffered up to the time at which it may fairly be estimated that the case will be tried to conclusion, by considering the additional delay after the writ was issued. This affects the inferences to be drawn as to whether the defendant can have a fair trial and it also adds to the period during which the defendant will be kept at risk. Even if there is no direct evidence of additional prejudice at the present time a decision in the present case must relate not merely to such prejudice resulting from the delay extending from the date of issue of the writ up to the present but also to potential additional prejudice which may fairly be expected to be suffered by the defendant in the period up to determination of the action. An application such as the present cannot fairly await a time when there is proof positive of some loss of memory or of specific witnesses.[31]
55 A plaintiff who has personally been the cause of the delay, or who has with full knowledge allowed the delay to continue, as in this case, will ordinarily find it harder to maintain that justice does not call for a dismissal than one who has been deceived by his legal advisers into believing that the proceeding is being duly prosecuted. Again, though it has been held that a defendant is not acting improperly in lying by in the hope that the plaintiff will delay long enough to enable a dismissal to be obtained, nevertheless a defendant may strengthen his claim that justice requires a dismissal by warning a plaintiff of the consequences of further delay.[32]
56 It is now authoritatively accepted that the question of whether a Court should take the exceptional step of dismissing a proceeding for want of prosecution does not necessarily depend upon how long has passed since the commencement of the proceeding. Nor is it necessarily dependent upon there being a lengthy period of inaction on the part of the relevant party. One can have a case where, although the proceeding has only been on foot for under a year, when one looks at what has happened at that time one can see that the proceeding has not moved to first base, let alone beyond it.[33]
57 In the decision of the Court of Appeal in Knorr, it was also made clear that the dismissal of a proceeding is entirely consistent with, and indeed mandated by, the provisions of the Civil Procedure Act 2010 (Vic) (‘CPA’).[34] So far as presently relevant, the overarching purpose, and the overarching obligations relevant to an application of this kind are –
(a) the overarching purpose in relation to the conduct of civil proceedings to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute (s 1(1)(c));(b) the paramount duty of the parties to the Court to further the administration of justice (s 16); and
(c) the overarching obligations to narrow the issues in dispute (s 23), to ensure costs are reasonable and proportionate (s 24) and to minimise delay (s 25).
58 In the implementation of these obligations the Court is given power in Part 2.4 of the CPA, in particular s 29(1)(f), pursuant to which the Court can make any order it considers appropriate in the interests of justice including, but not limited to, any order that the Court considers to be in the interests of any person who has been prejudicially affected by the contravention of the overarching obligations.
59 It is also clear, at least since the introduction of the CPA and the decision of the High Court in Aon Risk Services Ltd v Australian National University,[35] that case management considerations and questions of the proper use of court resources are matters that can be taken into account in determining applications for adjournment, the amendment of pleadings and the dismissal of proceedings in circumstances like the present. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the Court as well as upon other litigants.[36] Although the inevitable focus of the paramount purpose prescribed by the CPA may still be the ‘just’ resolution of the real issues in dispute, the other matters identified, the efficient, timely and cost-effective resolution, reflect the fact that speed and efficiency, in the sense of minimum delay and expense, are also essential to the just resolution of proceedings. As the plurality said in Aon Risk Services:
...what is a ‘just resolution’ is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re‑pleading, when delay and cost are taken into account ... the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution.[37]
60 The question arises in this case whether and in what circumstances there is a place for a consideration of the merits of a claim in the context of an application to dismiss for want of prosecution. In Sullivan v Greyfriars Pty Ltd[38] the respondent to an application for leave to appeal (‘Greyfriars’) sought dismissal of the application. The subject of the anticipated appeal was the dismissal of the applicant’s (‘Sullivan’) appeal on a question of law from the Magistrates Court. An Associate Justice dismissed Sullivan’s appeal from the Magistrates’ Court.[39] The subject of the Appeal was the dismissal by the Magistrate of Sullivan’s counterclaim against Greyfriars. Argument both at the trial and before the Associate Judge concentrated on the counterclaim. Sullivan sought leave to appeal to the Court of Appeal, but failed to comply with directions for filing a draft notice of appeal. Greyfriars sought to dismiss the application for leave to appeal on the basis that Sullivan’s ‘continued failure to file a draft notice of appeal in compliance with the orders of the Court amounts to a want of prosecution.’[40] Sullivan was largely self-represented, although the Court had sought that he have pro bono assistance, which was provided. Sullivan continued to advance the dismissal of his counterclaim as the focus of his application for leave to appeal. His pro bono Counsel advance grounds for an appeal from the order made on the claim by Greyfriars, rather than the dismissal of the counterclaim.
61 The Court of Appeal concluded that it was clear that the proposed appeal in respect of the counterclaim was fanciful and enjoyed no real prospect of success, and that Sullivan’s repeated failure to advance tenable grounds of appeal in respect of it made it clear that it was just, efficient and cost-effective to resolve the issues in dispute by acceding to the application for summary dismissal in respect of the counterclaim.
62 However, the Court considered-
(a) that although the defaults of Sullivan were serious, they were not appropriately described as inordinate nor were they likely to be inexcusable. Further, the respondent did not seek to establish any serious prejudice;[41] and(b) that the arguments raised by pro bono counsel for Sullivan as to the grounds of challenge to the order made on the claim in favour of Greyfriars did have real prospects of success. However, it was not clear that Sullivan had embraced those grounds. The Court considered Sullivan should have one final chance to decide whether or not to pursue an application for leave to appeal on the basis of the grounds identified by his pro bono Counsel.
63 Orders were made permitting Sullivan, if he wished, to file a draft notice of appeal containing the two grounds formulated by pro bono Counsel, but no other ground. If he did not do so, the Court stated its intention to dismiss the application for leave to appeal.
64 The importance of the decision in the current application is the observations of the Court as to the relevance of the merits of the appeal. It was noted that the Court is subject, including when exercising its inherent jurisdiction, to the statutory obligation in s 8 of the Civil Procedure Act 2010 to seek to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[42] The Court added:
Section 8 casts a new light on the inherent jurisdiction. It gives statutory emphasis to the importance of the timely resolution of proceedings, which in turn underscores the importance of compliance with orders of the Court for the management of a proceeding. But it also widens the range of matters to which consideration must be given. Even in cases where inordinate, inexcusable and prejudicial delay are not established, failure to comply with the orders of the Court may therefore none the less warrant summary dismissal. In light of s 8, the merits of the proceeding that is sought to be dismissed may bear on the exercise of the Court’s discretion. That is especially so in this case because the Court is dealing with an application for leave to appeal rather than an appeal brought as of right. (emphasis added)In considering the merits of any proceeding sought summarily to be dismissed, it is appropriate to consider the matters which would be relevant in determining whether the proceeding can be said to have no real prospect of success, that being the standard applied in the provisions concerning summary judgment in Pt 4.4 of the Civil Procedure Act 2010 (albeit that these provisions are not invoked in the present case). That test also mirrors the test the applicant would have to meet in order to obtain leave to appeal.[43]
65 In my view these observations must be read in the context of the subject matter concerned. The Court was not satisfied that there had been inordinate, inexcusable and prejudicial delay, but they were satisfied that the grounds of appeal advanced by Sullivan, as distinct from those advanced by his pro bono Counsel, were fanciful and had no real prospects of success. It is in this sense that the Court considered the prospects of success to be relevant. The lack of merit in a claim or appeal are clearly of great relevance to a dismissal of the proceeding, but in the proceedings in which the principles applicable have been worked out, there may or may not have been a real prospect of the proceeding being successful. It is often not possible to come to a satisfactory conclusion about that question.
66 The underlying basis of the power to dismiss for want of prosecution is to prevent abuses of the process of the Court.[44] The fact that the claim may have a real prospect of success should not, generally speaking, prevent dismissal if otherwise to allow the proceeding to continue would amount to an abuse of process. So far as I can determine, where there has been inordinate and inexcusable delay and prejudice suffered by the defendant, such that a fair trial cannot be held, it has not been considered a relevant answer that the plaintiff has a meritorious claim. That does not mean that there are no cases where the prospects of success may be relevant to whether the proceeding should be dismissed for want of prosecution. The dismissal for want of prosecution involves the exercise of discretion and, like all discretions must be exercised judicially and should not be constrained by any inflexible formulation as to the circumstances in which that discretion should be exercised. The ultimate test is that an order for dismissal is appropriate only when the justice of the occasion demands it.[45]
67 The application of the law as exposed above always depends on the nature of the proceeding concerned, in this case an application that provision be made out of the Estate for the proper maintenance and support of the plaintiff as a person for whom the deceased had a responsibility to make provision.[46] This empowering provision, unlike that now in force, does not include a list of eligible applicants for testator’s family maintenance, instead leaving it to the court to determine on a case-by-case basis whether provision should be made for a particular applicant. The Court must not make such an order unless the Court is of the opinion that the distribution of the Estate effected by her will does not make adequate provision for the proper maintenance and support of the plaintiff.[47]
68 In determining whether or not the deceased had responsibility to make provision for the plaintiff, and whether or not the distribution of the Estate as effected by her Will makes adequate provision for the proper maintenance and support of the plaintiff, and the amount of the provision, the Court must have regard to factors including:[48]
(a) the relationship between the deceased and the applicant, including the nature of the relationship and length of the relationship;(b) any obligations or responsibilities of the deceased to the applicant and the beneficiaries of the estate;
(c) the size and nature of the Estate and any charges and liabilities to which the Estate is subject;
(d) the financial resources (including the earning capacity) and the financial needs of the plaintiff and of any beneficiary at the time of the hearing and for the foreseeable future;
(e) any physical, mental or intellectual disability of the plaintiff or any beneficiary of the estate;
(f) any contribution by the plaintiff to building up the estate or to the welfare of the deceased;
(g) any benefits previously given by the deceased to the plaintiff;
(h) whether the plaintiff was being maintained by the by the deceased prior to death; and
69 These factors are viewed as codifying established principles relevant to a Pt IV application.[49] The case law makes clear that the operation of the provisions must be considered in the light of the previous law,[50] including that the common law moral duty or obligation to provide still permeates the codification. [51]
70 By s 99 of the A&P Act applications under Part IV must be made within 6 months after the date of the grant of probate of the will or of letters of administration, as the case may be. The design, as it were, is to ensure that claims of this kind are made and ideally determined quickly, so that executors and trustees can proceed to administer estates with minimal hindrance and delay. As noted by the learned authors of Wills and Probate Administration Service Victoria:
It has been repeatedly stated that the six-month time limit in the Act is there for good reason. The time limit is a substantive provision, not merely procedural, and the burden on the applicant for an extension of time is no triviality. Estates should be administered promptly without undue interference from claims for family provision. The actual beneficiaries are also entitled to be able to arrange their affairs and utilise their resources on the basis that once the time limit has expired claims can no longer be made.[52]
71 It is notorious in this jurisdiction that the outcome of an application is highly fact dependant, involves value judgments and in depends on the exercise of judicial discretion, albeit one that is hedged around with relevant considerations and not to be exercised ‘according to idiosyncratic notions of what is thought to be fair’.[53] It is necessary for the plaintiff to establish a need for provision and maintenance in order to enliven the jurisdiction, although ‘need’ is a relative concept not an absolute one.[54] The critical words ‘adequate’ and ‘proper’ are always relative. The age, capacities, means and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.[55] There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards.[56] This involves the Court placing itself in the position of the testator and to consider what the testator ought to have done in all the circumstances of the case, treating her for that purpose as a wise and just, rather than a fond and foolish, testator.[57]
72 For these reasons the evidence of the facts material to the various factors to be taken into account is critical to the ability of both parties to properly present their cases and for the Court to come to a clear and well-reasoned conclusion, one way or the other.
73 The defendants rely on the second and third matters in the tripartite test formulated by Lord Griffiths in Chris Smaller (Transport)[58] and accepted in Bishopsgate Insurance[59]:
(a) that there has been an inordinate and inexcusable delay on the part of the plaintiff or his lawyers; and(b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants, either as between themselves and the plaintiffs.
74 I will deal with the test under the headings that follow.
75 The defendants maintained, and the plaintiff accepted, that there had been inordinate delay. The authorities make clear that what is considered as such a delay depends on the facts of each particular case.[60] It is a question of fact and degree specific to the circumstances of the case.[61] In this case that needs to be viewed in the light of the limitation period of 6 months, even though that can be extended. The presence of the plaintiff’s claim prevents the defendants from completing the administration of the estate and establishing the trust for Emma. This proceeding was commenced within the 6 month period after the grant of probate and if prosecuted with at least the average dispatch would have been tried by about late 2013 or the first quarter of 2014. The present position is that if set down for trial now it may not get a trial date until the first quarter of 2022, 10 years after the grant of probate.
76 The defendants pointed to the fact that the plaintiff is and has at all times during the proceeding been bound by the overarching obligations in the Civil Procedure Act 2010 (Vic) (CPA), all of which are directed to fulfil the overarching purpose of the CPA which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute: s 7. Section 25 of the CPA provides that it is an overarching obligation of the plaintiff to use reasonable endeavours to act promptly and minimise delay.
77 Section 8 of the CPA provides that, whether in the exercise of the Court’s powers under statute, the Rules, common law, procedural rules, practice notes or in its inherent jurisdiction, the Court must give effect to the overarching purpose in the exercise, or interpretation, of any of its powers.
78 The defendants contended that this proceeding is ‘anathema to the provisions of the CPA referred to above’. The plaintiff has not taken a step in the proceeding since the mediation in November 2012, over seven years ago. He has been aware of the defendants’ intention to apply to the Court for dismissal of the proceeding since 6 May 2019. He accepts that he has not prosecuted his claim with proper diligence.
79 The plaintiff has not provided a credible explanation for his delay. The only explanation that the plaintiff has provided in his defence of this application is that ‘[t]he reasons for this lie in the history of my life whilst, with Anita, we addressed her advancing illness and failing health; and during the last year of her life after her oncologist discovered in October 2010 the recurrence of the mesothelioma. I was left traumatized by Anita’s death, and the events following it in the ensuing months and years served only to aggravate my condition’.[62]
80 If the plaintiff is relying upon his medical condition, or the trauma or the grief to which he refers, as an excuse for his inordinate delay, he should provide some expert medical evidence in support. Without it there is no objective or impartial support for the position that he advances. If there were such a report to confirm the plaintiff’s medical condition, his ADD and trauma, it still would not explain how the plaintiff was able to instruct lawyers in 2011 and 2012; have this proceeding issued, swear an affidavit, read 10 affidavits in reply and assimilate that information and respond to that by reply affidavit, contact the other witnesses to swear affidavits in support of his claim, attend a mediation and then arrange, a month after the mediation, to relocate his entire life to the Netherlands. All these steps required presence of mind, focus and some determination notwithstanding the grief of having lost Anita. Further, on the plaintiff’s return to the Netherlands, there is no explanation as to how it was that the plaintiff was able to start up a new life in the Netherlands, look after his daughter by himself, earn an income, presumably cook, clean, pay the bills and spend time with his family in the Netherlands. There is no explanation as to why he could do all this, on the one hand, but was unable to prosecute this proceeding, on the other hand. The only reason that he has now taken notice of this proceeding is the threat of this application.
81 The defendants noted that it was common in applications for family provision under Part IV of the A&P Act that they are conducted in a climate where there is some level of trauma, grief, anxiety and emotion, and often anger and resentment. They submitted that if the presence of trauma and grief was a reason to delay the claim for eight years, that that would be a very dangerous precedent to set because it may mean that the administrations of estates would just simply grind to a halt while people get over the emotions affecting them.
82 This is not a case where the plaintiff was without legal advice. Mason Sier Turnbull represented him until, as I have said, they were given leave to cease to act. After that Clancy & Triado represented the plaintiff until they could not get any instructions in 2013. And after the threat of dismissal for want of prosecution they again act for the plaintiff. The plaintiff must be taken to have known of his overarching obligations under the CPA and the fact that this litigation was in suspension.
83 The plaintiff has not provided any explanation that the delay was caused by locating witnesses or evidence, completing an investigation into facts, difficulties funding the proceeding, retaining new lawyers, delay caused by the defendants or any error of the Court.
84 The plaintiff initially submitted that there is here a credible excuse for the delay, and that tolerance is justified.[63] The plaintiff was traumatized. He is having medical assistance to deal with this. He felt himself to be in danger of losing the care of his only child to persons who clearly bore a considerable antipathy toward him. He had no money and was living in straitened circumstances – taking two years to pay for the funeral of his mother who died in 2018, whilst supporting his daughter. He was, understandably, hesitant to rejoin the fray.
85 However, in argument Mr Boaden of Counsel for the plaintiff appeared to accept that the delay was inexcusable. Notwithstanding this apparent concession, I think it is important to the overall conclusion to which I have come that the reason why the delay is inexcusable be disclosed.
86 In my view the plaintiff has not established that there is a credible and acceptable excuse for his delay. I agree with the defendants’ submissions that the plaintiff’s reliance on his medical condition, and the trauma and the grief to which he refers, as an excuse for his inordinate delay, should have been supported by expert medical evidence. Without it, the Court is left with no objective or impartial support for the condition from which he claims to have suffered.
87 Further, I agree with the submission of the defendants that the plaintiff’s medical condition, claimed as an excuse for his inaction, is at odds with the actions that he took both before and after he left Australia with Emma. As the defendants point out, the plaintiff was able to instruct two sets of lawyers in 2011 and 2012; have this proceeding issued, swear an affidavit, read 10 affidavits in reply and assimilate that information and respond to that by reply affidavit, contact the other witnesses to swear affidavits in support of his claim, attend a mediation and then arrange, a month after the mediation, to relocate to the Netherlands. All these steps required presence of mind, focus and some determination notwithstanding the trauma and grief that he claims to have suffered from. Equally, he was able to start a new life in the Netherlands, look after his daughter, earn an income, and spend time with his family in the Netherlands. There is no explanation as to why he could do all this, on the one hand, but was unable to prosecute this proceeding, on the other hand. The answer is likely to be that his failure to prosecute this proceeding, notwithstanding his health and financial problems, is consistent with a decision to give a higher priority to other matters or, more likely, to avoid confronting the defendants in a way that put his sole custody of Emma at risk.
88 One can understand his antipathy to Anita’s friends and relations, particularly those who made affidavits that described his behaviour towards her over the difficult period up to the final family violence intervention order and separation, and between then and her death. There is no suggestion, however, that his apparent anger and very difficult behaviour towards Anita was a product of his medical condition, as opposed to hers. One can also understand that he was fearful of the risk that he might lose his sole parenting rights of Emma had he remained in Australia. His enmity towards Ms Brown as a result of the Family Court proceedings may well explain his reluctance to engage with the defendants and not to advance this proceeding, which would likely as not have required him to return to Australia (possibly with Emma) for a trial and expose him to the jurisdiction of the Family Court in the process. It is noteworthy that his explanation for returning to the Netherlands is, I infer, partly based on his fear of the defendants obtaining some custody orders in the Family Court, because he says in his affidavit
Even though I thought they had no legal basis when it came to their family law litigation I was also fearful that they would make good their threats of litigation in the Family Court, and that I would have to face long drawn out and financially crippling litigation in order to maintain my parental rights in relation to Emma. I left within weeks of the mediation failing to resolve my claim against Anita’s estate.[64]
89 The period over which he simply did not respond to approaches by the defendants with a view to assisting in the support and raising of Emma is not adequately explained by his health or financial problems. Had he accepted help there is no doubt that he would have been better placed financially to prosecute this proceeding.
90 This is a case where the plaintiff has personally been the cause of the delay. He does not have any excuse that anyone else, like his lawyer, is responsible for the delay. As Smith J observed in Alginates (Aust) Pty Ltd v Thomson & Carroll Pty Ltd, it is harder for him to maintain that justice does not call for a dismissal. It is also relevant that the defendants warned the plaintiff directly in 2019 of their intention to apply to dismiss the proceeding, but apart from attempting to negotiate a solution, no step was taken by or on his behalf. That strengthens the defendants application to dismiss.[65]
91 Mr Boaden maintained that there should have been another warning after the negotiations broke down. I disagree. The plaintiff was clearly warned. Why would another warning be necessary when the negotiations ended? There was no evidence as to what happened in the negotiations that would warrant another warning. Mr Pitt, for the defendants, did say that the matter almost settled. But that was not known to Mr Boaden and there is, understandably, no evidence about it. It is, in the circumstances, not a reason to think another warning was necessary.
92 As a general rule, the longer the delay in the proceedings, the greater the likelihood that serious prejudice will be suffered at the trial.[66] This is because a long delay in proceedings will typically mean that the case is decided on less evidence than would have been available to the parties at the time the cause of action arose. In Lovejoy v Carp & Ors,[67] the court held that due to the inevitable gradual loss of evidence over time, general prejudice to a defendant may be inferred simply from inordinate delay.
93 Specific instances of prejudice may include the death of witnesses or parties, the impairment of memory and/or the inability to locate relevant documents. The cases of Hinge and Anor v Dunne and Ors[68] and Duncan v Lowenthal[69] demonstrate this proposition.
94 The plaintiff’s delay has caused prejudice to the defendants in the proper conduct of their defence. The plaintiff’s claim is for an order pursuant to Part IV of the A&P Act. It is clear from the evidence filed by the parties that the claim will necessarily turn on disputed questions of fact which will in turn be dependent upon the oral evidence of witnesses and their recollections. This is not a matter which depends principally upon the application of legal principles to largely undisputed facts, or upon disputed questions of fact that will be resolved by reference to documentary or other objective evidence not likely to be affected by the effluxion of time.
95 In Johnson v Public Trustee of Queensland as Executor of Will of Brady (decd)[70] a family provision claim was filed in 2003 and, after failing to settle at mediation, the applicant took no further steps. Four years later, the respondent executor tried to get the proceedings moving by sending draft orders and proposals to the applicant. The applicant then failed to comply with numerous court orders and failed to provide any adequate excuses. The primary judge held that ‘a party that fails to prosecute an action with a degree of expedition risks being precluded from pursuing a cause of action’, and that whilst mere delay is insufficient, in this case, the matter had not advanced in any meaningful way for (approximately seven) years. The claim was dismissed. The applicant appealed, arguing among other things, prejudice and that the primary judge had overlooked certain relevant matters including that the applicant was destitute and unable at the time to pay for valuations required by the Court. The Court of Appeal dismissed the appeal, saying that ‘the appellant failed to prosecute her proceeding for years’ and that it was in the interests of justice to dismiss the proceedings. Applegarth J pointed to the applicant’s ‘history of delay, her unjustified non-compliance with generous and revised timetables for the matter to be prepared for trial and the absence of any indication that the matter would be ready for trial if the appellant was given more time’.
96 Applied to the present case, the above remarks are clearly apposite. Based on the delay, the defendants are necessarily prejudiced in their ability to both call and cross- examine witnesses about these factors in relation to events that occurred between nine and fourteen years ago. This is because the length of the plaintiff’s delay gives rise to a substantial risk that witnesses’ memories will have deteriorated and it will not be possible to have a fair trial of the questions in the proceeding. This is particularly so, given that the standard orders for trial in Part IV cases contemplate the giving of viva voce evidence by witnesses (subject to any order of the trial judge). The defendants are also specifically prejudiced because of the death of both of the deceased’s parents, who were potential witnesses.
97 In addition to being executors of the deceased’s Will, the defendants are to be the trustees of Emma’s Trust. The ongoing litigation has prevented the defendants from finalising the administration of the Estate and establishing Emma’s Trust in accordance with the terms of the deceased’s will. The unresolved litigation also continues to cause personal stress and anxiety for the defendants. The defendants feel a moral responsibility towards the deceased and Emma in administering the Estate and establishing Emma’s Trust and the presence of the proceeding is preventing them from doing so.
98 The Court can, and should, also take account of the prejudice to Emma if the claim remains on foot. It has been almost a decade since the deceased died. Emma is her only daughter. Due to the plaintiff’s move to the Netherlands and his failure to prosecute his claim, Emma has suffered and continues to suffer prejudice because the defendants have not been able to administer the Estate and establish Emma’s Trust. If the proceeding does not settle at mediation, there will be a significant further delay suffered by Emma as she waits for the hearing and determination of the trial of the proceeding (which could take 1-2 years).
99 The ongoing litigation also continues to impose a financial burden on the Estate which erodes the funds available for Emma’s Trust. The Estate has incurred legal costs for over seven years as the defendants have attempted to engage with the plaintiff.
100 Somewhat perversely, since Emma is residing with the plaintiff and he appears to be Emma’s sole carer, the ability of the defendants to establish the trust and provide assistance to Emma would, inevitably, serve to benefit the plaintiff, including by easing the financial strain he claims to suffer by reason of having to support Emma. In this sense, the continued presence of the proceeding is preventing the plaintiff from improving Emma’s position as well as his own.
101 The Plaintiff disputes the Defendants’ assertion that the outcome of the trial will necessarily turn on disputed questions of fact which will in turn be dependent upon the oral evidence of witnesses and their recollections. There have been 15 affidavits filed in this proceeding. Much of the affidavit material goes to what might be said to be the ‘character and conduct’ of the plaintiff, focusing on the traumatic last 12 months of Anita’s life.
102 The fundamental question in this case is what was Anita’s minimum and unavoidable moral obligation to make provision for the plaintiff’s maintenance and support in circumstances where she had a large and valuable estate to dispose of, and her partner and the father of their child would be left with no property of his own, only a modest ability to earn income, and the responsibility of providing a home for their daughter, educating her and finding the money to pay all of the expenses arising in supporting and educating a young girl. Addressing and answering that question has very little to do with making any judgment about the behavior, or misbehavior, of the plaintiff during that last year of Anita’s life; and much to do with an objective assessment of the plaintiff’s financial needs when providing for and bringing up a young and then a teenage daughter. The duty which this placed on Anita arose out of all of the circumstances – their relationship during its happy days, their relationship during the period in which she succumbed to her illness, and the lengthy period during which the plaintiff would be left alone to care for and bring up their three year old daughter.
103 At the heart of Mr Boaden’s submissions is the proposition that there will be no prejudice to the defendants because, if he appeared for the plaintiff in the trial, he ‘would be very foolish’ to cross-examine the defendants’ witnesses in an attempt to ‘water down’ their affidavit evidence by suggesting what they describe did not happen. In essence, he was submitting that the plaintiff would not be seriously disputing the evidence of the plaintiff’s bad behaviour at the trial but will be advancing the proposition that this is a strong case for provision to be made. He submitted that the decision of the Court of Appeal in Sullivan v Greyfriars shows that in determining whether to dismiss the proceeding for want of prosecution the Court must look at the merits of the case as well as the matters otherwise necessary according to earlier authorities. When that is done, he submitted, it shows a good claim that the wise and just testator would not have left the plaintiff without some provision.
104 I can do no better than to set out what Mr Boaden said:
There is no prejudice, in my submission, and no difficulty in looking at the matter objectively, working out the value of the estate at the time, looking at the circumstances, a young man who had been in a relationship for three or four years, had the child, had the care of the child for the rest of his life, had no money and had a difficult – difficult phase to go through in looking after her because of his mental and his physical conditions.So when one looks at the case like that, my submission is that there is no particular prejudice to the defendants in this case, and that then leads and segues into the particular considerations in relation to part 4 cases. Of course, normally, if I were a beneficiary under an estate and someone brought a claim against it and I had to wait eight years to get my money, it would be likely to be a great injustice to me, or perhaps not but it might be.
But all part 4 cases are different and this one is singularly different because of this. The estate is destined for Emma and for her children. The defendants had the power and the inclination to make payments for her. They as executors or as trustees of the will or ultimately as trustees of the testamentary trust will have a duty to invest the funds, and there’s no suggestion that they haven’t been investing the funds now. Of course they have been doing that.
And there is no financial loss been suffered by anyone. The only prejudice, the only loss is that Emma’s entitlement and inheritance was reduced by the proceedings in the Family Court, but I don’t follow that any further. The only other prejudice to her as the sole – effectively the sole beneficiary is that some provision is likely to be made out of the estate for the maintenance and support of her father.
And again, when one thinks of it, it would be an invidious position to leave Mr Lemmens in this position, that he has got little if any money, he has got little if any income, and then when his daughter turns 18 he should go to her cap in hand and say, ‘Look, by this stage I’m getting into my sixties. The end of my working life is approaching. Can I ask you to make some provision for me to help me through the rest of my life?’ That’s not how families ought to operate and that’s not the position in which Mr Lemmens should be placed vis a vis his daughter.
And to leave him in that position would be a grave injustice, in my submission. So that (indistinct) a little (indistinct) cry from the heart is really the way in which I see this case and the way – the reason that I have always thought that Mr Lemmens has got a powerful claim which deserves to go to trial. So can ‑ ‑ ‑ [71]
105 Whilst this involved a ‘cry from the heart’, it was also a direct challenge to the reality of there being any substantial prejudice, or the risk of the trial being unfair to the defendants, if there were no substantive challenge to the evidence of the defendants’ witnesses. Mr Boaden did not, however, go so far as to indicate that he would not cross-examine the defendants’ witnesses.
106 This estate still (apparently) owns residential units in Elsternwick and in Brighton. Mr Boaden contended that the value must be substantial. The cost of having ABL write or read the 11 letters enumerated in Dollard’s affidavit is doubtless not insignificant; but in the context of the estate it is not, or is submitted not to be, a particularly compelling consideration. The delay can be having no other adverse impact on the estate. Whether in their capacity as executrices, or as trustees of the testamentary trust which they are directed to establish, the defendants have the duty to invest the assets of the estate in an appropriate manner; and doubtless, with the advice and guidance of their lawyers, they are doing that.
107 The defendants will not be suffering stress or anxiety anything equal to that which the plaintiff felt himself to be suffering whilst dealing with the very determined, and expensive litigation which they brought against him in the Family Court. The defendants have no financial interest in the outcome of this claim, or in the estate itself. There is no reason for them to feel any personal stress or anxiety, other than their natural desire to have the claim against the estate brought an end.
108 The plaintiff recognizes that he has caused unwarranted and inordinate delay in this litigation. He is now mentally prepared to rejoin it and play his part in bringing it to as speedy a resolution as will be possible in the circumstances. He is prepared to engage in a further mediation, if the defendants participate in good faith. If that is not their wish, he is ready willing and able to do whatever is necessary to complete the preparation of the case, and to participate in the trial. After all, he, too, is as anxious as the Defendants may be to have his claim finalised, in whatever way may be necessary. The Plaintiff understands the nature of self-executing orders and has given specific instructions that, if the Court considers reasonable self-executing orders to be appropriate, then he will abide by their terms.
109 The critical issue in this application is whether inordinate and inexcusable delay gives rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is likely to cause or to have caused serious prejudice to the defendant.
110 The identification of proved direct prejudice in this case is limited. If after the mediation the proceeding progressed to trial, that trial would have been held, at the latest, by the end of 2014. The last of Anita’s parents died in April 2020 according to the evidence given by the plaintiff.[72] So at least one parent, possibly both, may have been available at the time that the trial could be anticipated to have been held. They were not, however, identified as witnesses at the time of the mediation and it is not clear that they would have been witnesses at all. Counsel for the defendant’s submitted that in his view they would have been called to give evidence.
111 It is clear from the evidence filed by the parties, particularly from the affidavits filed by the defendants which I have referred to above (see [8<[73]] above),73 that, subject to the contention that there will be no substantial dispute as to the evidence given in those affidavits, the claim appears to involve the likelihood that there will be disputed questions of fact which will in turn be dependent upon the oral evidence of witnesses and their recollections. The factors relevant will not be limited to the character and conduct of the plaintiff. It will include the nature and length of the relationship between Anita and the plaintiff, the contribution by the plaintiff to building up the Estate and the welfare of the deceased, whether the plaintiff was being maintained by Anita prior to her death and of course, a synthesis of all the factors to arrive at a view as to whether Anita had a moral obligation to make provision for the plaintiff’s maintenance and support and if so to what extent.
112 Whether the resolution of this proceeding depends upon the application of legal principles to largely undisputed facts will depend on two matters. First, whether the affidavits in answer to the defendants’ affidavits, which have not been filed and which I have not seen, do contest the apparently reprehensible behaviour of the plaintiff towards the deceased. Given one affidavit is by the plaintiff and three are by lay witnesses points to a contest to the evidence advanced by the defendants. Secondly, upon whether the disputes require extensive or any cross-examination of the defendants’ witnesses and thus bring into play their availability and recollections of events that by the time of the trial will be over ten years past. If that occurs, there is the distinct likelihood that the memories of the witnesses will have been affected by the passage of time. As I have said, Mr Boaden did not go so far as to say that he would not cross-examine the defendants’ witnesses.
113 Against that it must be recognised that the witnesses have recorded their observations in their affidavits and will be able to refresh their memories, at least to some extent. It was put by the defendants that, even though they may be able to refresh their memories, there will arise questions of whether the witnesses’ memories or recall are correct. If the plaintiff wants to put forward a different version of events from those depicted in the defendants’ affidavits, then the defendants’ witnesses will be cross-examined as to their recollections about the relationship between the plaintiff and Anita and his treatment of her. That will involve them in having an independent recollection of events that occurred more than ten years earlier. It is seriously to be doubted whether the witnesses will have such an independent recollection after ten years, as it will be by the time of the trial.
114 Another matter arises which also gives rise to a risk that the defendants will not be able to have a fair trial. It is that the defendants now need to find the deponents of their affidavits, make sure they are still willing to give evidence, revisit the evidence recorded in the affidavits, and then prepare for trial. It is understandable that the defendants have not yet taken these steps. There is clearly a risk that there will be difficulties faced in taking these steps, in particular, I infer, in relation to the former neighbour of the plaintiff and Anita who made an affidavit. There is a serious risk that she has moved and whether she can be found is not known.
115 These matters give rise to the inference that the defendants are prejudiced, in the relevant sense, that the delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the proceeding. The fact that the deceased’s parents would have been available to give evidence had the trial been held within a reasonable time, say during 2014, is an instance of potential direct prejudice, from which prejudice in the defence of the claim may be inferred.
116 As I have said, it is not correct to say that the defendants are obliged to allege prejudice upon affidavit, as opposed to asking the court to infer from all the circumstances of the case that prejudice has been or will be likely to be suffered. This is not to deny that prejudice, actual and potential, must be established. It is merely a reminder that proof of any issue can be established by circumstantial evidence and of the necessary process of inference from such evidence. The defendant is entitled to point to undisputed facts and ask the court to draw necessary logical inferences from them for this purpose
117 Even if there were no direct evidence of prejudice at the present time, any decision on the defendants’ application must relate not merely to such prejudice resulting from the delay extending from the date of issue of the originating motion up to the present, but also to potential additional prejudice which may fairly be expected to be suffered by the defendants in the period up to the determination of the claim, likely to be in 2021 or 2022. An application such as the present cannot fairly await a time when there is proof positive of some loss of memory or of specific witnesses.
118 If, contrary to my view expressed above (at[66]), it is generally necessary for the Court to take into account the prospects of success of a claim the subject of an application to dismiss for want of prosecution, in this case it is not possible for the Court to come to the conclusion that the plaintiff’s claim does have a real prospect of success. It may be, as Mr Boaden submits, that it does have such a prospect of success. But in an application to dismiss for want of prosecution the focus is directed primarily in another direction, and the Court does not have all the material that should be put in evidence if the application were an application to dismiss under Part 4.4 of the CPA. There are affidavits that have not been filed or otherwise put before the Court. There are, or so it seems, disputes of fact as to the conduct of the plaintiff towards Anita. There are therefore real difficulties in arriving at a conclusion one way or the other as to the ‘merits’ of the claim for provision under Part IV of the A&P Act.
119 As I have said earlier (at [66]), that does not mean that there are no cases where the prospects of success may be relevant to whether the proceeding should be dismissed for want of prosecution. The dismissal for want of prosecution involves the exercise of discretion and, like all discretions must be exercised judicially and should not be constrained by any inflexible formulation as to the circumstances in which that discretion should be exercised. The ultimate test is that an order for dismissal is appropriate only when the justice of the occasion demands it.
120 This proceeding is, as the defendants submitted, ‘anathema to the provisions of the CPA’. When exercising its inherent jurisdiction Court is subject to the statutory obligation in s 8 of the CPA to seek to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. The obligation to facilitate the just, efficient, timely and cost-effective resolution of the real issues in this proceeding reinforces my conclusion that the time that has elapsed, and the substantial risk that a fair trial of the defendants defence to the proceeding cannot be had, means that the proceeding should be dismissed.
121 The defendants contend that the delay has caused personal stress and anxiety for the defendants. In the Dollard affidavit he deposes:
I am informed by the defendants and believe that the unresolved litigation also continues to cause personal stress and anxiety for the defendants. I have also observed this myself in my dealings with them. I am informed by the defendants and believe that they feel a moral responsibility towards the deceased and Emma in administering the Estate and establishing Emma’s Trust.
122 The plaintiff’s answer is that the defendants will not be suffering stress or anxiety anything equal to that which the plaintiff felt himself to be suffering whilst dealing with the very determined, and expensive litigation which they brought against him in the Family Court. That, with respect, is a diversion. The defendants are not professional executors or trustees. They are the best friend and a close blood relation of the deceased. Although the defendants have no financial interest in the outcome of this claim, or in the estate itself, they have had the ongoing role as executors faced with litigation, which in my view is always burdensome and stressful, particularly for lay people. It is, in my view, wrong to say that there is no reason for them to feel any ‘personal’ stress or anxiety. They are the defendants who will carry the burden of defending the proceeding, making decisions and giving evidence. It would be remarkable if they were not stressed by their duties and the prospects of Supreme Court litigation. They also clearly have a real anxiety about the interests of Emma. They have borne these burdens for 8 years. I do not think it right that they should bear them for another 18 months to two years.
123 With respect to the submission that there has prejudice to Emma because the defendants have not been able to administer the Estate and establish Emma’s Trust, I consider that the prejudice is more apparent than real. As Mr Boaden submitted on behalf of the plaintiff, whether in their capacity as executrices, or as trustees of Emma’s Trust which they are directed to establish, the defendants have the duty to invest the assets of the estate in an appropriate manner; and doubtless, with the advice and guidance of their lawyers, they are doing that. They have, and have exercised, the power as executors to apply moneys in the Estate for the maintenance of Emma.
124 It is often said in applications of this kind that the ultimate question is – what does the justice of the case require? In my view, the justice of this case requires it to be dismissed because through the inordinate delay, which is not excusable, the plaintiff has obtained a situation where the defence to his claim is likely to have been weakened substantially by the effluxion of time. The resolution of a claim under Part IV of the A&P Act should be resolved expeditiously and in a cost effective manner.
125 The defendants have to persuade the court that it is just and fair in all the circumstances to dismiss the plaintiff’s claim without it being heard. The drastic remedy of dismissal for want of prosecution is appropriate, in my opinion, because delay has been inordinate and inexcusable and there is inferred prejudice, in the sense that there is a substantial risk that it is not possible to have a fair trial of the issues in the proceeding.
126 For the reasons given above, the plaintiff’s proceeding should be dismissed for want of prosecution. I will ask the parties to confer about the question of costs and, if agreement can be reached, to submit draft orders. Otherwise, I will ask the parties to submit short submissions as to the costs of the proceeding.
[1] These facts are taken from the affidavits filed in support and against the dismissal of the proceeding and the documents on the Court’s file.
[2] Affidavit made on 26 June 2020 (‘Dollard affidavit’).
[3] Made 19 December 2012.
[4] The first made on 19 October 2012 the second on 20 November 2012
[5] Made 15 October 2012.
[6] Made 15 October 2012.
[7] Made on 16 October 2012.
[8] Made on 17 October 2012.
[9] Made on 17 October 2012.
[10] Made on 24 October 2012.
[11] By post to the address in the Netherlands originally given in the first notice of ceasing to act and by email to patrick.lemmens@gmail.com.
[12] Affidavit of Simon John Dollard made on 26 June 2020 (‘Dollard confidential affidavit’).
[13] This sentence is taken from the reasons of McMillan J in Re Steiner [2013] VSC 232, [11], referred to below.
[14] The application was made pursuant to r 54.02(2)(c)(i) of the Rules.
[15] Re Steiner [2013] VSC 232.
[16] Re Steiner [2013] VSC 357.
[17] Ibid, [5].
[18] Rule 15.04.
[19] Affidavit of plaintiff made 20 August 2020, [35].
[20] Ibid, [38].
[21] Ibid [39].
[22] Duncan v Lowenthal [1969] VicRp 21; [1969] VR 180, 182; Exell v Exell [1984] VicRp 1; [1984] VR 1, 7–8; Muto v Faul [1980] VicRp 3; [1980] VR 26; Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863 (‘Bishopsgate Insurance’).
[23] Knorr v CSIRO (Commonwealth Scientific and Industrial Research Organisation) [2014] VSCA 84, [53].
[25] [1989] AC 1197, 1203 (‘Chris Smaller (Transport)’).
[26] Bishopsgate Insurance [1999] 3 VR 863, 873 [29].
[27] Bishopsgate Insurance [1999] 3 VR 863, 874 [30].
[28] [1989] AC 1197, 1207-8; Bishopsgate Insurance [1999] 3 VR 863, 875 [32].
[29] Bishopsgate Insurance [1999] 3 VR 863, 875 [33].
[30] Bishopsgate Insurance [1999] 3 VR 863, 876 [34].
[31] Ibid, 876 [35].
[32] Alginates (Aust) Pty Ltd v Thomson & Carroll Pty Ltd [1970] VicRp 74; [1970] VR 570, 574- 575.
[33] Per Johnson J in Udowenko & Ors v Chief Executive Officer of the Board of Directors of St George Bank – A Division of Westpac Banking Corporation (No 2) [2011] NSWSC 1122, [117]; Knorr v Commonwealth Scientific and Industrial Research Organisation (CSIRO) [2012] VSC 529, [26]; Knorr [2014] VSCA 84, [49].
[34] [2014] VSCA 84, [63].
[35] (2009) 239 CLR 175 (Aon Risk Services).
[36] Aon Risk Services (2009) 239 CLR 175, [93].
[37] Aon Risk Services (2009) 239 CLR 175, [98].
[38] [2015] VSCA 196 (Whelan and McLeish JJA).
[39] The associate Judge had the power to hear the appeal in the exercise of a power conferred by order of a Judge made under r 77.05 of the Rules: [2014] VSC 422 [3].
[40] [2015] VSCA 196, [20].
[41] Ibid, [42].
[42] See also Chan v Chen [2013] VSC 538, [39]–[46].
[43] [2015] VSCA 196, [23]-[24], footnote omitted.
[44] Bishopsgate Insurance, [1999] 3 VR 863, 873 [26].
[45] Alginates (Aust) Pty Ltd v Thomson & Carroll Pty Ltd, [1970] VicRp 74; [1970] VR 570, 574 (approved in Bishopsgate (1999) 3 VR 863, 873 [28]); Chan v Chen [2013] VSC 538, [46].
[46] Section 91(1) of the Administration and Probate Act 1958 (Vic) as in force at the date of the deceased’s death (‘A&P Act’).
[47] Section 91(3) of the A&P Act.
[48] Section 91(4) of the A&P Act.
[49] Richard v AXA Trustees Ltd [2000] VSC 341 at [7] per Eames J; Allan v Allan [2001] VSC 242 at [60]- [69] per McDonald J; Lee v Hearn [2002] VSC 208; (2002) 7 VR 595 at 606, [42] per Warren J; Blair v Blair [2002] VSC 131 at [21] per Harper J., and Valbe v Irlicht [2001] VSC 53 at [81]- [81] per Gillard J.
[50] Lee v Hearn [2002] VSC 208; (2002) 7
VR 595 at [42]; affirmed on appeal [2005] VSCA 127; (2005) 11 VR 270; Blair v Blair [2004] VSCA 149; (2004)
10 VR 69 at [51]- [53]; Harris v Bennett (No 3) 
[2004] VSC 171 
; (2004) 8 VR 425 at [22] ;
MacEwan Shaw v Shaw [2003] VSC 318.
[51] Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, [13] (Chernov JA) and [41] (Nettle JA).
[52] [39,050]
[53] McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).
[54] Collicoat v McMillan (1999) 3 VR 803 at [47]. MacEwan Shaw v Shaw [2003] VSC 318 at [214].
[55] Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [122].
[56] Per Gibbs J in Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 at 502; cited with approval in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 211.
[57] Petrucci v Fields [2004] VSC 425 at [58]; See also Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 146, citing Bosch v Perpetual Trustee Co [1938] AC 463 at 478-9; Panozzo v Worland [2009] VSC 206 at [25].
[58] [1989] AC 1197, 1203.
[60] Allen v Sir Alfred McApline & Sons [1968] 1 All ER 543, 561; National Mutual Life Association of Australia Ltd v Reynolds [2000] FCA 267 (Spender J); Berrigan v McIver [1974] VicRp 96; [1974] VR 811; Niewmann v Electronic Industries Ltd [1978] VR 43.
[61] Leighton v Garnham (No 4), [2016] WASC 134,
[62] Plaintiff’s affidavit sworn 20 August 2020, [71].
[63] Adopting the words of the Full Court in Duncan v Lowenthal [1969] VicRp 21; [1969] VR 180, 185.
[64] Affidavit of plaintiff made 20 August 2020, [39].
[65] Alginates (Aust) Pty Ltd v Thomson & Carroll Pty Ltd [1970] VicRp 74; [1970] VR 570, 574- 575.
[66] National Mutual Life Association of Australia Ltd v Reynolds [2000] FCA 267 (Spender J) adopting statement of Salmon LJ from Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at 268.
[68] (Unreported, Supreme Court of Victoria, Hampel J, 24 March 1997).
[69] [1969] VicRp 21; [1969] VR 180.
[71] Lemmens v Davis & Anor S CI 2012 03637, transcript, 2 September 2020, p.51-52.
[72] Plaintiff’s affidavit made on 21 August 2020, [61].
[73] The answering affidavits are not in evidence, having not been filed.
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