The applicant's Application in a Proceeding, to the extent that it relates to intervention, would appear to be an application made pursuant to rule 3.04 of the Rules. It does not comply with that rule as it is not accompanied by an affidavit setting out the orders, if any, that the applicant will seek if included as a party. Indeed, how the applicant proposes to conduct her case as intervenor, and how this would differ from the conduct of the case of the deceased husband by his legal personal representative, was left entirely unexplained.
The affidavit relied upon by the applicant says no more in relation to the application to intervene than the vague assertion that she wishes to be heard in relation to the form and substance of the orders to be sought by the parties.
Although it was not asserted by her, I have turned my mind to whether the applicant is, or could be, a person entitled to intervene without leave, by operation of subsection 79AA(10)(b) of the Act. If that be the case, the application is unnecessary and the process provided for in rule 3.07 should instead have been followed.
However, the difficulties with the applicant's application are not merely procedural.
As Gun J held in Rogers & Rogers[4], intervention under section 92 is designed to allow third parties who are affected personally by proceedings to intervene to protect their interests.
Mason & Hannaford[5] involved a similar factual situation to the present case. In that matter, the husband had died following the institution of proceedings and the executor and trustee of his will, as his legal personal representative, had been substituted for him as a party. The husband's daughter had been joined as an intervenor by consent. Justice Moss considered whether circumstances pertaining to beneficiaries under the deceased's will (the sole beneficiary in that case being the husband's daughter), were relevant to the proceedings.
His Honour determined that to take the daughter's interests into account would not be permissible because his Honour would be required to go outside the ambit of section 79 and enter the area covered by the state legislation, being the area concerned with succession or relating to the administration of deceased estates. The judgment in this case was successfully appealed,[6] but not in relation to that point.
Similarly, in Erdem & Ozsoy[7], Walters FM, as his Honour then was, considered the factors that are relevant to determining whether it was still appropriate to make an order with respect to property pursuant to what is now subsection 79AA(8)(b)(ii). His Honour held that in exercising his discretion with respect to what property order to make under that subsection, the Court may not take into account the claims or financial circumstances of the beneficiaries of the deceased spouse's estate.
It would appear from the material filed by the applicant, and particularly from the fact that her application to intervene was originally framed as being pressed 'if and only if' she was unsuccessful in being substituted as legal personal representative, that what she seeks to do is not protect any interest of her own separate to the estate of the husband, but effectively to make submissions on behalf of the estate so as to maximise its entitlements pursuant to orders made in these proceedings, with the ultimate result of maximising her own entitlements as a beneficiary. Put another way, she seeks to step in to run the husband's case. That is the role of the legal personal representative.
It is not to the point that, as submitted by the applicant, her interest under the will, and therefore the size of the estate, exceeds that of Mr Remeika. As submitted on behalf of the estate, she has no proprietary interest in any particular piece of property and only a residual interest as a beneficiary of the estate.
Importantly, the applicant has no interest in these proceedings separate from the interests of the estate. The only interest she has is in ensuring that the entitlements of the estate are properly advocated for and recognised, such that just and equitable orders are made pursuant to section 79 of the Act, which do not involve any undue diminution of the husband's entitlements. This is exactly the same as the interest in the proceedings held by the estate itself.
I accept the submission made on behalf of the legal personal representative that case management principles (and I would add to that the overarching purpose provided for in section 95 of the Act) militate against effectively permitting more than one party to run the same case. As Brennan CJ held in Levy v Victoria,[8] if the intervenor's submission is merely repetitive of the submission of one or other of the parties, efficiency would require that intervention be denied.
Counsel for the applicant relied heavily on complaints contained within the applicant's evidence with respect to the conduct of the current legal personal representative and concerns as to whether the husband's estate was effectively being represented. The applicant sets out in her affidavit complaints about conduct of, and decisions made by, Mr Remeika in his capacity as executor of the husband's estate, which she says affect her as a residual beneficiary, and alleged failures on his behalf to provide her with information about the proceedings. She also deposes to a lack of confidence in him. The supporting affidavit filed by her mother repeats her complaints, but takes things no further.
Some of the complaints made by the applicant are also echoed by the wife. Both the applicant and the wife also deposed to suspicions that Mr Remeika has retained large sums of cash formerly belonging to the husband which should form part of the estate.
The issue of access to information can be resolved by an order granting the applicant access to the Court file, which will be made by consent today. The applicant's complaints will otherwise likely be relevant to the Supreme Court proceedings, and if the applicant succeeds in those proceedings, there will be an impact on these proceedings. However, in my view they do not demonstrate that the applicant has an interest in these proceedings such as would warrant a grant of leave to intervene in her own right.
For these reasons, although it is conceivable that the applicant's interest as a beneficiary would be affected by the determination by this Court of the section 79 proceedings in the practical sense that those proceedings could affect the quantum of the husband's estate and therefore the amount she stands to inherit, I am not satisfied that she is a 'person affected' in the sense referred to in section 79AA(1)(b), nor that leave to intervene under section 92 is warranted. Nor is it apparent that her participation as a party is necessary for the Court to determine all issues in dispute in the proceedings in the sense referred to in rule 3.01.
[2]
As to the wife's application for substitution for the Public Trustee as legal personal representative, although it was conceded on her behalf that this application might be 'premature,' it was not withdrawn, and I will therefore deal with it.
Rule 3.19 of the Rules provides as follows:
[3]
(1) This rule applies to a financial or property proceeding or an application for the enforcement of a financial obligation.
(2) If a party dies, the other party or the legal personal representative of the deceased person must ask the court for procedural orders in relation to the future conduct of the proceeding.
(3) The court may order that the legal personal representative of the deceased person be substituted for the deceased person as a party.
[4]
Note 1: The court may make other procedural orders, including that a person has permission to intervene in the proceeding (see rules 1.31 and 3.04).
Importantly, rule 3.19 provides that a legal personal representative can be substituted for a deceased party. It does not provide for another person to be substituted for a legal personal representative, nor for any person other than the legal personal representative to be substituted for the deceased party.
'Legal personal representative' is not defined in the Act or in the Rules. There was a definition in the explanatory guide to the Family Law Rules 2004 (Cth), being, 'the executor or administrator of the party's estate.' That definition has not been replicated in the current rules, however, the current rule 3.19 is, in all material respects, identical to rule 6.15 of the former rules, and there is no indication of any intention to change the meaning of that rule upon its incorporation into the present rules. The explanatory statement to the current rules provides simply that rule 3.19 is based on the earlier rule.
There is some uncertainty in the authorities as to whether an executor is a legal personal representative in the relevant sense prior to a grant of probate, or in the case of a party who dies intestate, whether the proposed administrator is the legal personal representative for the purposes of rule 3.19 prior to a grant of letters of administration.[9]
There is, however, no uncertainty in the relevant authorities as to the fact that it is the executor or administrator (as applicable) who is the legal personal representative and is therefore able to be substituted for the deceased party pursuant to rule 3.19.
Justice Nygh considered this issue in Bailey & Bailey_,_[10] and held that whomever obtains the letters of administration or is the executor of the estate must be the legal personal representative for the purposes of the family law proceedings. So certain of this proposition was his Honour, that in that case the executor of the husband's estate was held to be the legal personal representative of the deceased husband and was substituted for him as a party to the proceedings, notwithstanding that that executor was in fact the wife.
Notwithstanding what his Honour identified as the apparent absurdity of having the same party appointed on both sides of the family law proceedings, his Honour was of the view that the wife must be appointed because it would be inappropriate and improper to have her appointed as the legal personal representative of the husband's estate in one court, but to have somebody else appointed in the same role in another court. This aspect of his Honour's decision was noted without criticism of the Full Court in an appeal from a later order made in the same proceedings.[11] The same thing also occurred in Wynne & Hummel_._[12]
In Doyle & Doyle,[13] Lindenmayer J criticised and discharged an order that had been made by a registrar providing that a person be 'appointed' the legal personal representative of the deceased wife and replace it with an order providing that they be substituted for the wife. His Honour observed that this Court has no power to 'appoint' anyone as the legal personal representative of a deceased person and that the appointment flows from a grant of probate or letters of administration in the Supreme Court of the relevant state, pursuant to the applicable state legislation.
In S (deceased) & S_,_[14] Mullane J considered whether the Court could appoint someone other than the executor or administrator of the estate of the deceased party to conduct proceedings under section 79 on behalf of the deceased. His Honour held as follows:.
The expression "personal representative" is a legal term and thus as such means, in relation to a deceased person, the executor of the Will of the deceased (whether probate has been granted or not) or a person to whom a grant of Letters of Administration has been made for the estate of the deceased (see 17 Halsbury's Laws 4th Edition para 704; Vol 3, Words and Phrases Legally Defined, Butterworths 3rd edition; Strouds Judicial Dictionary 5th Edition, Sweet and Maxwell Volume 4 at 1930; Butterworths Australian Legal Dictionary (1997) 873).
[6]
...
Subsection 79(8) does not give power to this Court to appoint someone as "legal personal representative" of a deceased party to be substituted to continue the proceedings or to be the person against whom the proceedings may be continued. It does not appear to contemplate an appointment by the Court of a representative like a guardian ad litem, for example. Indeed, par 79(8)(a) says:
[7]
"The applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings."
Clearly from the language of the section and the authorities, the person who is to be substituted must already be the legal personal representative of the deceased. This Court has no power to appoint a person as legal personal representative of the deceased.
In the present circumstances, the Applicant could need to obtain from the Supreme Court, Letters of Administration with the Will annexed, or Letters of Administration ad litem making her the legal personal representative of the deceased wife before the Court can make an Order under s 79(8) substituting her for the deceased party.
[8]
A number of other authorities also stand for, or support, the proposition that the Court cannot appoint someone as a legal personal representative, but rather can only substitute a person who already stands in that role pursuant to the order of a state court or operation of state law.[15]
This precise issue was considered by his Honour Judge McGinn earlier in these proceedings. In his judgment dated 29 June 2023[16], his Honour held at paragraph [13] that the status of the legal personal representative can only be recognised by, but not granted by, a court exercising jurisdiction under the Act.
His Honour held that, in other words, a court exercising jurisdiction under section 79(8)(a) (or, as it now is, 79AA(8)(a)), of the Act merely substitutes a legal personal representative for a deceased party and does not appoint a person as a legal personal representative. His Honour noted that in the present case the appointment has been effected under South Australian law by the Supreme Court of that state. I respectfully agree with and adopt his Honour's remarks.
In Roland & Argento and Anor,[17] in circumstances not dissimilar to those raised in the present application, the wife made a complaint about the conduct of the person who had been substituted for the husband in their capacity as the legal personal representative of his estate. This did not alter the fact that the person in question was the validly appointed legal personal representative and was therefore the only person who could be substituted for the deceased pursuant to the applicable rule.
Counsel for the wife did not refer me to any authority standing contrary to those which I have discussed.
Until such time, if any, as the status of Mr Remeika as the legal personal representative for the husband is changed by way of order of the Supreme Court, he remains the only person who can be substituted for the husband in these proceedings pursuant to rule 3.19.
I do not accept the submission of counsel for the wife that her application, although 'premature,' should simply be adjourned and considered at a later date. Until such time, if any, as a new legal personal representative may be appointed, there is simply no basis for the application at all. The application is misconceived, as was the applicant's application in similar terms, which was ultimately not pressed.
It is not appropriate for the Court to leave open an improperly brought application on the basis that the person seeking to press it hopes that circumstances will change such that one day it might become appropriate. If, and only if, at some future time an order is made in the Supreme Court which changes the identity of the legal personal representative of the deceased husband, an application for substitution pursuant to rule 3.19 will then become appropriate, and indeed, I anticipate that an application brought in such circumstances would not be opposed.
[9]
The wife seeks leave to issue a subpoena to a real estate agent with respect to the sale of a property previously held by the estate, which she considers may have been sold for a sum less than its true value.
The Rules do not set out a test for the grant of leave to issue a subpoena. I take guidance from the relevant authorities[18] which set out tests akin to those regulating the circumstances in which an objection to a subpoena would likely be upheld, including but not limited to consideration of whether a subpoena serves a legitimate forensic purpose, whether the documents sought have apparent relevance to the proceedings, and whether it is otherwise oppressive.
I am satisfied that the circumstances surrounding the sale of the property formerly held by the estate is an issue that bears apparent relevance to the proceedings and that the subpoena therefore serves a legitimate forensic purpose. The proposed subpoena does not appear objectionable on its face. Leave will be granted.
The wife otherwise seeks discovery from Mr Remeika in his personal capacity with respect to his passport and his personal bank accounts, or in the alternative, leave to issue subpoenas to obtain those documents.
The purpose of this discovery appears to be to investigate the suspicions raised by the wife and by the applicant that Mr Remeika has accessed cash previously belonging to the husband's estate, which they have extrapolated must have been the source of funds used by Mr Remeika for overseas travel they understand that he has undertaken.
Mr Remeika is not a party to these proceedings in his personal capacity, being the capacity in which discovery is sought. With the limited exception of employers, the rules of this court do not provide for orders for discovery to be made against persons who are not parties to the proceedings. I am not satisfied that there is power to order discovery against Mr Remeika in his personal capacity, but for the same reasons as those that follow with respect to the request for leave to issue subpoenas, I would not have been persuaded to do so even if there had been power.
The proposed subpoenas appear on their face to be a fishing expedition based entirely on speculation and conjecture. How it is said that the evidence of misappropriation of funds in the form of cash could be expected to be found by way of an examination of bank statements, much less a passport, was not properly explained.
Fishing has been described as a circumstance where 'a person who has no evidence that fish of a particular kind are in a pool, desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.'[19] In my view, this is an apt description of what the wife seeks to do here.
I do not consider that the wife has established that it is 'on the cards,'[20] to use the terminology in the authorities, that the documents would materially assist her case.
It has been held that it is not enough for a party issuing a subpoena to raise a speculative possibility that the documents sought would assist the resolution of the dispute.[21] In my view, that is precisely what has been raised here.
In any event, it appears likely that these issues will be ventilated in the Supreme Court proceedings, and it may well be that the state of knowledge of, and evidence available to, each of the parties will be different at some future time.
For these reasons, the orders for discovery and leave to issue subpoenas with respect to Mr Remeika's banking records and passport will not be made.
[10]
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Parker.