Aliza Alice Sassoon v Adrian Rose and ors

Judgment (ex tempore) 1HIS HONOUR: Before the court are two proceedings, in which the plaintiff is Ms Aliza Alice Sassoon. 2In the first proceeding, 2011/82496, the named defendant, Adrian Rose - the executor of Ms Sassoon's late husband Isaac Joseph Beder, who died on 24 August 2009 - moves to have the summons struck out or the proceedings dismissed on the basis that it is vexatious, embarrassing or an abuse of the process of the court. That application is supported by Jewish Care, who, though not named as a defendant in the original summons, is the subject of a claim for relief in the summons, and is named in a proposed amended summons which Ms Sassoon has filed a motion claiming leave to file. 3In the second proceeding, 2011/94941, the first defendant, the Department of Housing, seeks an order summarily dismissing the proceedings on the ground that they disclose no reasonable cause of action or are an abuse of process. 4It is convenient to deal first with the application by the Department of Housing in the 94941 proceeding. The summons claims, against the second defendant Gemini Hotel, an order prohibiting it from shutting off water supply and power until the plaintiff is rehoused elsewhere. As I understand it, she has now left those premises, and that claim is superfluous. 5The summons also contains complaints that the Department of Housing has not taken sufficient steps to assist Ms Sassoon, and that she requires urgent accommodation. While Ms Sassoon's position is undoubtedly very difficult and tragic, there is no power in the court to order the Department of Housing to provide accommodation for her. 6In my view, the 94941 proceedings disclose no conceivable claim against the first defendant. Any claim against the second defendant is no longer of any utility. The proceedings must therefore be dismissed. 7In proceedings 94941, I order that the proceedings be dismissed. 8I turn then to proceedings 82496. Although the summons is difficult to interpret, on reading it and the supporting material, I think it can be ascertained - not without difficulty - that what Ms Sassoon really wants is provision under the (NSW) Family Provision Act 1982 or the (NSW) Succession Act 2006 out of the estate of her late husband, in circumstances where, although there was a divorce settlement of sorts many years ago - indeed, it would seem, 30 years ago - she claims that she is in very poor circumstances, in need of further provision, and that the original provision made for her under the divorce settlement was inadequate. 9While the claim of a former spouse against a deceased person requires that circumstances be established warranting the making of the claim, it could not be said on the face of it that such a claim by Ms Sassoon was hopelessly unarguable. It is true that it is somewhat out of time, the 12month period provided by the Succession Act having elapsed on 24 August 2010. But one child of the deceased has already brought a family provision claim, which is still on foot. In those circumstances, the prospects of Ms Sassoon being granted an extension, if she otherwise has an arguable case, are not unreasonable. 10While the form of the summons is at present embarrassing, enough can be ascertained from it to conclude that Ms Sassoon may have an arguable claim for provision out of the estate under the Succession Act . 11Further evidence, of course, might show that there are good reasons for not granting an extension of time, or for thinking that, in light of the divorce settlement, the case is hopeless; but that is not apparent on the material presently before the court, nor is that the basis on which the dismissal application is brought. Rather, it is brought on the basis that one cannot tell what Ms Sassoon's claim is. While I have considerable sympathy with that argument, I have concluded that it is possible to divine that her claim is one for family provision. 12Although Ms Sassoon seeks leave to file an amended summons joining additional defendants - including the Department of Housing, Jewish Care and Centrelink - I can see no viable cause of action against any of those entities. 13The amendment required is to clarify the family provision claim, rather than to file an amended summons in the form proposed. As, in those circumstances, Jewish Care will not become a defendant in those proceedings, it is unnecessary to make any order on its application that the proceedings as against it be dismissed; there are and will be no proceedings against it. 14Ms Sassoon has a longstanding complaint that she has not been able to obtain legal representation. So far as I can ascertain from the material before me, at least once previously, an order has been made referring her for pro bono representation. In those circumstances, the court is not to make an order for such a referral for another three years following its previous referral, unless satisfied that there are special reasons that justify a further referral: see (NSW) Uniform Civil Procedure Rules 2005 , r 7.36(2A). Again so far as I can tell, the previous order for referral was made by Bergin J on 31 July 2009, as her Honour then was, well within that three-year period. However, at that time the referral could not have been in respect of a potential claim for provision out of the estate; it was in proceedings between Ms Sassoon and one B A Arste, the details of which are not known to me. 15I am satisfied that the circumstances of this case - including that there may be a viable family provision claim; the fact that that claim must necessarily be quite a different one from that in respect of which the previous referral was made, and that it might just be possible to bring some sense, proportion and focus to the present applications by a referral - amount to special reasons to make a referral, notwithstanding that it is within the three-year period. 16In proceedings 82496, therefore, my orders are: (1) That the plaintiff's notice of motion of 23 March 2011, seeking leave to file the amended summons attached to it, be dismissed. (2) That the defendant's motion filed 29 March 2011 be dismissed. (3) That on the plaintiff's motion filed 1 April 2011, by order pursuant to UCPR r 7.36, I refer the plaintiff to the registrar for referral to a barrister or solicitor on the pro bono panel for advice in relation to the proceedings and, in particular, to settle an amended summons in accordance with the direction that I will make, and for advice as to the prospects of an application for an extension of time and for provision out of the estate of Isaac Joseph Beder. (4) That the summons be amended to delete the present description of the type of claim and substitute "family provision"; and to delete the relief claimed and substitute: (1)An order making provision for the plaintiff out of the estate or notional estate of Isaac Joseph Beder (deceased). (2)An order extending time for making this application until the date on which the summons is filed.