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[2000] WASC 132
Supreme Court of WA
2000-05-19
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : CLAY -v- KARLSON & ANOR [2000] WASC 132
Practice and procedure - Application for leave to amend statement of claim - Turns on its own facts
1 MASTER SANDERSON: This was the return of the plaintiff's application for leave to amend his statement of claim. After hearing argument I indicated that I would refuse leave to re-amend, save to a limited extent which I will detail below. The plaintiff asked me to provide reasons for my decision. These are those reasons.
2 Before dealing with the specifics of this application, I should say something of the nature of the claim and its history to date. Alfred Clay died on 24 January 1995. (Throughout the various statements of claim the plaintiff has referred to Alfred Clay as "Alf". For the sake of consistency, I will adopt that nomenclature.) On 16 March 1995 Alf's will dated 25 July 1987, together with a codicil dated 30 November 1988, were proved under the provisions of the Non Contentious Probate Rules. Probate of the will and codicil was awarded to the first and second defendants as executors named in the will. The plaintiff claims that at the time Alf signed the codicil he was not of sound mind, memory and understanding and the codicil is therefore of no force and effect. Further, and in the alternative, it is alleged that Alf did not know and approve of the contents of the will and the codicil on the date that he signed the codicil. The plaintiff seeks a revocation of the grant of probate and order pronouncing for Alf's will and an order pronouncing against the validity of the codicil. The plaintiff has an interest as beneficiary under the will and the codicil and there is no dispute that he has standing to bring this application.
3 There is also no argument by the second defendants that, there being an allegation of unsoundness of mind of Alf and lack of knowledge of the content of the will and codicil at the date of signing, the onus of proof of the will and codicil rests with the defendants. The law on that question is clear and, if the defendants have ever disputed their obligation, they certainly do not do so now. The defendants therefore must establish, on the evidence, that Alf was of sound mind, memory and understanding when he signed the codicil and that he knew and approved of its contents.
4 Against that background, it might be expected that the statement of claim would be a simple straightforward affair. That has not proved to be the case. The writ of summons containing a general endorsement was issued on 10 December 1996. An amended writ of summons was issued on 23 December 1996. A statement of claim was filed on the same day. Since that date there have been a bewildering array of minutes filed seeking to amend the statement of claim. With great respect, very few of the proposed amendments add anything to the plaintiff's cause of action. Despite that fact having been pointed out to the plaintiff on numerous occasions, still applications are brought to amend the statement of claim. The present application for leave to further re-amend the statement of claim dates from July 1999. There have now been five appearances in relation to this application spread over almost 12 months. On 9 September 1999 I dealt with the application in relation to a minute dated 19 August 1999. I published reasons for refusing leave to amend in the form of that minute: see Clay v Karlson & Anor [1999] WASC 205. In publishing those reasons, I attempted to outline for the plaintiff the parameters within which the statement of claim could be amended. But this latest version goes well beyond the guidelines I provided. In large measure the amendments are unacceptable.
5 With respect to par 4A, I indicated in my earlier reasons that it was open to the plaintiff to allege that Gibson & Gibson, the firm of solicitors who prepared the codicil had received instructions and prepared the document on the same day. Instead, the proposed par 4A goes into a series of sub-paragraphs which, apart from anything else, are matters of evidence. All the plaintiff needs to do is plead the fact of instructions for and preparation of the codicil on the same day. Whatever probative value that fact, if proved, will have is then a matter for the court. What was actually done in the preparation of the codicil - that is to say the mechanics of its preparation, are matters of evidence.
6 By par 5 of the statement of claim (unamended) the plaintiff alleges that the second defendant is the residuary beneficiary and the person benefited by the amendments to the will effected by the codicil. The proposed par 5A through to par 5C make a series of allegations about the second defendant's position with and relationship to Alf. Furthermore, it is alleged in the proposed par 5B that the second defendant owed certain duties to Alf with respect to his will. It is the case that a close relationship between the deceased and a person benefiting under the will might lead the court to look carefully at all the surrounding circumstances when the will was created. The present par 5 of the statement of claim puts the court on notice as to that relationship. The matters referred to in the proposed par 5A through to par 5C add nothing to the position. The amendment should not be permitted.
7 By par 6 of the present statement of claim the plaintiff pleads that he is a legatee under both the will and the codicil. Paragraphs 6A through par 6E then go on and refer to a series of other persons who would or might have benefited under the will or the codicil. Reference is also made to the value of the estate. None of these matters is relevant. The will and the codicil are in evidence. The effect of the codicil on the will and the overall distribution of the estate will become evident from consideration of these documents. The proposed amendments are irrelevant and ought not be permitted.
8 In relation to par 7, I did allow certain amendments which make it clear that the plaintiff alleges that the onus of establishing that Alf was of sound mind, memory and understanding is on the second defendant. Nothing really turns on these amendments, but they at least make it plain what the plaintiff is alleging with respect to the onus of proof. I also allowed an amendment to the particulars to include par 7.1(aa). This particular details a trauma allegedly suffered by Alf on or about 14 October 1988. Reference to this particular event draws to the attention of the defendants a date from which it can be said (on the plaintiff's case) that Alf was not of sound mind, memory and understanding. But after the first sentence of the proposed par 7.1(aa) the proposed amendment is irrelevant. The onus is on the defendant. The plaintiff need say nothing. The particulars the plaintiff seeks to include (which are really no more than evidence of the allegation) are irrelevant. The same can be said of par 7.8A.
9 I was prepared to allow the amendment proposed as par 7.8B. This seems to raise an issue which is slightly different from other matters raised in the particulars. If it is established that Alf did not have sufficient time to consider the codicil then he may not have understood its contents. It is proper the plaintiff particularises that aspect of his claim.
10 With respect to par 8, I was prepared to allow the amendments which show the plaintiff claims the onus is shifted to the defendant on the question of whether Alf knew and approved the contents of the will. The proposed amendments add nothing to the statement of claim, but as with the additions to par 7 they make the position clear. They can stand.
11 I would not allow the rest of the proposed amendments to par 8. As I have repeatedly said, the onus is on the defendants to establish that Alf knew and approved of the contents of his will. It is not for the plaintiff to particularise matters which must be proved by the defendants. The plaintiff was particularly aggrieved by my refusal to allow the amendment to par 8.3. He pointed out that there was no objection to amendment to this paragraph raised by the defendants. That is not to the point. The plaintiff is seeking an indulgence from the court and he must satisfy the court that amendment in the form he proposes is appropriate. Paragraph 8.3, along with the other sub-paragraphs of par 8 simply is not appropriate. It adds nothing to the plaintiff's case and it should not be permitted.
12 It would be in the best interests of all concerned if interlocutory proceedings in this matter were brought to a conclusion. Unfortunately, that is not likely to happen. The plaintiff foreshadowed during the course of his submissions on this application he intended to bring another application for further and better discovery and he intended to seek leave to issue interrogatories. He is entitled to take both steps. There is nothing I can do to stop him. The interlocutory process will drag on. After four years, no trial is in sight. The case brings to mind the comments of Lord Denning MR in Buttes Gas and Oil Co v Hammer (No 3) [1980] 3 All ER 475, where his Lordship said in exasperation (at 487):
"There is quite enough of it in all conscience. Take out a summons for directions. Either side can demand that it be tried by a jury. I pity the jury. Set the action down for trial at once. Let it hang about no longer. For goodness sake get rid of it one way or the other."
13 For these reasons I gave limited leave to the plaintiff to further re-amend his amended statement of claim.
# Clay
Karlson & Anor \[2000\] WASC 132