Agnew v Mitton [2011] NSWSC 931
R v Peters (1886) 16 QBD 636
Singer v Berghouse (1994) 181 CLR 201
Source
Original judgment source is linked above.
Catchwords
Agnew v Mitton [2011] NSWSC 931
R v Peters (1886) 16 QBD 636
Singer v Berghouse (1994) 181 CLR 201
Judgment (2 paragraphs)
[1]
Judgment
1HER HONOUR: Before me for hearing on 23 March 2012 was an application (brought by Amended Notice of Motion filed in Court (by my leave) on the commencement of the hearing) by the plaintiff, seeking declaratory relief and consequential orders (in advance of a final hearing of her claim) as to the relevance of evidence that has been foreshadowed by the defendant on the plaintiff's claim for provision out of the estate of the late George Whibley.
Issue
2The relief sought on the present application (leaving aside procedural matters) is as follows:
A declaration that evidence of the financial resources (including earning capacity) and financial needs, both present and future, of any beneficiary of the estate of the late George Whibley is irrelevant to the hearing and determination of the plaintiff's application pursuant to the Succession Act 2006 (NSW) (the Act) that a family provision order be made in her favour from the estate of the late Violet Eugenie Harrigan.
An order pursuant to s 61(1) of the Civil Procedure Act 2005 (NSW) or Part 2, Rule 1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or s 135 of the Evidence Act 1995 (Cth) that the plaintiff's application for a family provision order pursuant to the Act be heard and determined without the admission into evidence or consideration by the Court of the financial resources (including earning capacity) and financial needs, both present and future, of any beneficiary of the estate of the late George Whibley.
Background
3The background to the present application is largely uncontentious. The plaintiff (Ms Cowmey) is the only child of Violet Eugenie Harrigan, who died on 23 May 2010 leaving a will dated 9 May 2008. Under that will, Ms Harrigan's then de facto partner, Mr George Whibley, was named as executor. He and Ms Cowmey were named beneficiaries of Ms Harrigan's estate (with a specific legacy to a named third party).
4After Mr Whibley (informally it seems) renounced probate, Ms Cowmey applied for and, on 22 October 2010, received a grant of probate of Ms Harrigan's will dated 9 May 2008. Shortly before probate was granted, Mr Whibley died (on 20 September 2010).
5Under Mr Whibley's will, dated 15 May 2003, Ms Cowmey was named as his executor. She has not yet applied for a grant of probate of Mr Whibley's will (and had earlier indicated an intention not to do so) but I am informed that she now intends to do so. (There may be a disputed probate suit as to who ought properly obtain a grant in the circumstances, particularly where Ian and John Whibley have (or may have) intermeddled in the estate (having been told that the executor under the will was intending to renounce probate. However, that dispute is not before me.)
6Ms Harrigan was the sole beneficiary of Mr Whibley's estate. That gift therefore failed (as Ms Harrigan had pre-deceased Mr Whibley) and Mr Whibley's estate will pass on survivorship to his next of kin. All of Mr Whibley's next of kin reside in the United Kingdom.
7Mr Ian Whibley is one of Mr George Whibley's two surviving brothers. He and the remaining brother (Mr John Whibley) have retained solicitors in this jurisdiction (Teece Hodgson & Ward) and have appointed two of the partners of that firm as their attorneys in relation to the conduct of a next of kin enquiry and to apply for a grant of letters of administration.
8Proceedings were commenced in this Court on 18 May 2011 by Ms Cowmey, by way of Summons, seeking various forms of relief including an order that a family provision order be made pursuant to the Act in favour of Ms Cowmey in respect of her mother's estate. No defendant was joined to the proceedings at that stage. (There is no suggestion that this is improper, although in circumstances where Ms Cowmey is bringing an application contrary to the will that, as executor, she has a duty to uphold, it will clearly be necessary for someone to be appointed to represent the estate.)
9Both an Amended Summons and a Further Amended Summons have since been filed. The position now is that the sole relief sought by Ms Cowmey in these proceedings is that a family provision order be made in her favour in respect of the late Ms Harrigan's estate.
10Mr Ian Whibley was joined as a defendant to the proceedings, with the consent of Ms Cowmey, in July last year. That consent was on the basis that Mr Whibley had consented to acting as the representative of Mr Whibley's estate. On 22 August 2011 a notice of appearance was filed on behalf of Mr John Whibley. (Ms Cowmey did not consent to this.)
11Counsel for the defendant (Mr Gorrick) did not press any application for Mr John Whibley to be formally joined as a defendant. However, he points out that, if a grant of letters of administration is made to the attorneys appointed by the Whibley brothers, it may be that they should be substituted defendants in the proceedings.
12Counsel for Ms Cowmey (Mr O'Connor) accepts that, had the late Mr Whibley survived, it would have been normal procedure for Mr Whibley to be joined as the defendant in these proceedings in order to represent the only interest adverse to Ms Cowmey in the proceedings. He further accepts that, as Mr George Whibley is deceased, it is appropriate for the Court now to appoint a defendant to be joined to these proceedings to represent the late Mr Whibley's estate and that Mr Ian Whibley is an appropriate person to be so appointed. (The position of Mr O'Connor, however, is that there is no basis for more than one representative of Mr Whibley's estate to be named as a defendant in these proceedings and hence that Mr John Whibley should not also be named as a defendant.)
13It is noted that r 7.10 of the UCPR allows the Court to appoint a representative of a deceased's estate in circumstances where the executor of the deceased's person's estate has an interest in the proceedings that is adverse to the interests of the estate. Mr O'Connor readily concedes that Ms Cowmey (the named executor of Mr Whibley's estate, though to whom probate has not been granted) has an interest in these proceedings that is adverse to the interests of the late Mr Whibley's estate.
14The upshot of the debate in this regard is that it is accepted that Mr Ian Whibley is an appropriate person to be appointed as representative of his late brother's estate and that an order should be made to that effect under r 7.10. Mr Gorrick also sought an order that:
Subject to further order of the court, order that the representative defendant's costs of these proceedings, on the indemnity basis, be paid out of the estate of the late Violet Harrigan (rather than the said defendant being personally liable for those costs).
15I considered it appropriate to make those orders and did so.
16Turning then to the application before me for declaratory relief, the substantive proceedings brought by Ms Cowmey concern Ms Cowmey's claim for a family provision order pursuant to s 59 of the Act in respect of her late mother's estate.
17Section 60(1) of the Act provides that the Court may have regard to the matters set out in subsection (2) for the purpose of determining whether the person in whose favour the order is sought to be made is an eligible person, and whether to make a family provision order (and the nature of any such order). A wide range of matters is therein set out.
18Relevantly, pursuant to s 60(2)(d) of the Act, the Court may have regard to:
the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate. (my emphasis)
19Pursuant to s 60(2)(p) of the Act, the Court may have regard to:
any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.
20The issue that has arisen is that Mr Ian Whibley's solicitors have indicated that they intend to serve evidence from Mr Ian Whibley, Mr John Whibley and nieces of the late Mr George Whibley as to their financial and material circumstances. Ms Cowmey opposes such evidence being adduced on the basis that it is said to be irrelevant to the assessment and determination of her family provision claim.
21It is submitted by Mr O'Connor that the financial and material circumstances of Mr Whibley's relatives can be relevant to Ms Cowmey's claim in respect of her late mother's estate only if that evidence falls within either of sub-ss 60(2)(d) or 60(2)(p) of the Act.
Reasons
22Essentially, the dispute on the present motion turns on whether the next of kin of the late Mr George Whibley are beneficiaries of Ms Harrigan's deceased estate for the purposes of s 60(2)(d) of the Act or are persons whose financial needs and circumstances may otherwise be relevant to the determination of Ms Cowmey's application for financial provision.
Beneficiaries of deceased person's estate
23As to the former, Mr O'Connor places weight on the fact (which is not disputed) that the late Mr Whibley's relatives are not named as beneficiaries in Ms Harrigan's will dated 9 May 2008. Those named in the will are Ms Cowmey (as to residue); Mr Aden Perry (a specific legatee); and Mr George Whibley. However, Mr Gorrick contends that the next of kin of the intestate estate of the late Mr Whibley (who is named in the will) are beneficially entitled to a share of Ms Harrigan's estate, claiming through the estate of the late George Whibley, and that their circumstances (including their financial circumstances) are relevant matters for the Court to take into account pursuant to s 60(2)(d) (or otherwise pursuant to s 60(2)(p)).
24Mr Gorrick submits that the reference in s 60(2)(d) to beneficiaries of the deceased person's estate is not confined to those persons named as beneficiaries in the will.
25In contending to the contrary, Mr O'Connor places weight on the decision of Hallen AsJ in Goodsell v Wellington & Ors [2011] NSWSC 1232. There, his Honour (having noted at [81] that there is no mandatory command to take into account any of the matters enumerated in s 60(2) for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order) said at [84] that s 60(2)(p) is open ended and that "It enables the court to look beyond the specific statutory matters that are set out in the immediately preceding sub-sections and to consider any other matter it considers relevant." At [86] his Honour said:
Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons, as well as of the beneficiaries named in the deceased's Will, whilst others do not. (my emphasis)
26I do not read his Honour's reference there to "beneficiaries named in the will" as importing a conclusion that reference to beneficiaries of a deceased person in (d) means only those actually named in the will (or that the position of persons not named in the will but who may be beneficially entitled thereunder might not in some circumstances be relevant to take into account). To do so would, I consider, be to place too much weight on a comment that, for these purposes, was passing dicta (since the question as to whether evidence of a person beneficially entitled to a share of the estate but not named in the will did not fall for determination).
27Section 60(2)(d) does not in terms refer to a beneficiary named in the will. Mr Gorrick refers to the example of a testamentary discretionary trust where objects of discretionary trust may not participate in the deceased's bounty and may not be explicitly referred to in the will but nevertheless would be seen as "beneficiaries" of the deceased, and to the situation where the residuary gift fails giving rise to a partial intestacy and there is a statutory presumption that the intention of the testator is to benefit his or her next of kin, as circumstances which point against a construction of sub-s (d) as limited to beneficiaries named in the will.
28The word 'beneficiary' is not defined in the Act, whether generally or specifically in the context as it appears in s 60(2)(d), and does not appear to have been the subject of consideration in the present context in the authorities. (There is no section which corresponds with the paragraphs such out under sub-s 60(2) in the Family Provision Act 1982 (NSW), which was repealed by the Succession Amendment (Family Provision) Act 2008 (NSW) that inserted s 60 (as part of Chapter 3) into the Act.)
29There is a discussion by G L Certoma, The Law of Succession in New South Wales (4th ed, 2010) as to the requirements under s 60(2). The author says (at [12.160]) that:
The listed matters include those that the courts have usually taken into account in determining family provision applications. They include: the nature and duration of the relationship between the applicant and the deceased; the nature and extent of any obligations or responsibilities owed by the deceased to the applicant, other applicants or beneficiaries of the estate, that is, competing claims on the deceased's bounty, the nature and extent of the deceased's estate; the means and needs of the applicant, other applicants and the beneficiaries of the deceased's estate [...] The section is broad in scope and places no restriction on the relevant matters which the court may have regard in determining an application. (my emphasis)
from which it might be thought that the author was treating the reference to beneficiaries of the deceased's estate as a reference to those with a claim on the deceased's bounty.
30However, at [12.170], Certoma goes on specifically to consider the means and needs of the applicant, other applicants and beneficiaries, stating that:
This enables the court to acquire a complete picture of the means and needs of everyone who is likely to be affected by an order, including persons whose interest would only arise on intestacy [Re Harker-Thomas [1969] P 28; Re Clarke [1968] 1 All ER 451]. Such inquiry may reveal that the applicant is not the most needy person interested in the estate. (my emphasis)
31The above passage appears to be consistent with the view that even if 'beneficiary' in s 60(2)(d) is limited to a named beneficiary under the will, the Court may nevertheless also take into account the needs of persons whose interest would only arise on intestacy.
32Although not conclusive, dictionaries may be used to assist in establishing the meaning of a term appearing in legislation (D C Pearce & R S Geddes, Statutory Interpretation in Australia (7th ed, 2011) at [3.30]; Manly Council v Malouf [2004] NSWCA 299 at [8]-[9], R v Peters (1886) 16 QBD 636 at 641). In this regard, I note that The Encyclopaedic Australia Legal Dictionary defines "a beneficiary" as:
A person who, by being in a particular kind of legal (including equitable) relationship, receives or is to receive a benefit, profit, or advantage.
A person who is entitled to receive the benefit of a testamentary disposition; a person having a beneficial interest in property; a person with an interest in a will or an intestate estate: Re Edwards [1981] VR 794.
33This definition does not limit the word 'beneficiary' to those only named in a will. To the extent that it may "also be useful for a judge to consider his or her own understanding of ordinary English usage" (Sydney Local Health Network v QY [2011] NSWCA 412 at [18] per Campbell JA), this definition also seems to be consistent with the ordinary usage of the word 'beneficiary'.
34The term 'beneficiary' has been frequently used to apply not only to persons taking under a valid will, but also to persons entitled upon intestacy. For example, in McKenzie v Baddeley (Unreported, NSW Court of Appeal, Priestley, Handley JJA and Hodgson AJA, 29 August 1995), Hodgson AJA (as his Honour then was) held that the entitlements of 'intestate beneficiaries' were relevant to a family provision application, using the word beneficiaries to describe both those who took on intestacy and those taking under a will. Cases where 'beneficiary' is used in this way are too numerous to compile a comprehensive list. Two High Court cases which do so are Crooks National Stores Pty Ltd v Collie (1957) 97 CLR 581 (per Dixon CJ and Williams J) and Affleck v R (1906) 3 CLR 608 (in which the subject matter concerned probate duties imposed on beneficiaries whether under a will or in an intestacy).
35Nothing in either the statute or the conventional usage of the word 'beneficiary' suggests to me that the word should be limited only to those whose interest in an estate arises under a specific provision in a will, rather than upon intestacy. Therefore, I am by no means persuaded that the next of kin of the late Mr George Whibley would not fall within the meaning of "beneficiaries" of Ms Harrigan's deceased estate in the circumstances that have arisen. In any event, I do not consider it necessary to make any concluded finding on this issue, since I am satisfied that their financial circumstances could be considered relevant on the final application as set out below.
Relevance otherwise than under s 60(2)(d)
36The use of the permissive 'may' in s 60(2), combined with the breadth of s 60(2)(p), allows the Court to take into account other matters which it, in its discretion, may consider relevant to the making of a provision order. This again suggests that the word 'beneficiary' in s 60(2) should not be given an unnecessarily restrictive interpretation (or that, in any case, a court may have regard to evidence put on by those persons taking on intestacy under s 60(2)(p)).
37The interest that a person in the position of the next of kin of the late Mr Whibley has in the deceased estate of Ms Harrigan arises from the entitlement of the next of kin to compel the proper administration of the late Mr Whibley's estate (and, through the executor/administrator of that estate, the proper administration of the late Ms Harrigan's estate). In Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694, the Privy Council considered the nature of a residuary legatee in an unadministered estate. The principles are summarised in Meagher Gummow and Lehane's Equity: Doctrines and Remedies (4th ed, 2002) at [4-020]:
...the Judicial Committee speaking through Viscount Radcliffe analysed the interest of a beneficiary as to one third of the residue of an unadministered estate in terms that (a) during the course of the administration the entire ownership of the assets in the estate was vested in the personal representative so that the beneficiary had at that stage no "proprietary" interest in any particular asset in the estate; the right of the beneficiary was to compel the personal representative to administer the estate correctly and to obtain the assistance of a court of equity to that end; and (b) that right was a chose in action which was transmissible under the will of the beneficiary as personal property. But it is not clear from the case to what extent the beneficiary would, during the course of administration, be able to assert any proprietary interest against third parties.
38(The Privy Council's decision specifically uses the words 'residual legatee' as opposed to 'beneficiary' throughout the speech cited in the above passage. It seems that this may be in order to distinguish the interest of a residual legatee from that of a specific legatee, rather than to distinguish between a party taking under a will and a party taking on intestacy).
39Mr O'Connor does not dispute that persons taking an intestacy fall within sub-s (2)(d) but maintains that this is not the case where the intestacy arises in respect of a beneficiary of the deceased estate. He draws support (for the contention that evidence of the needs of the late Mr Whibley's next of kin would not be relevant on the current application) from the fact that those persons would not necessarily fall within the category of persons with competing claims on Ms Harrigan's (as opposed to Mr Whibley's) testamentary bounty.
40Mr O'Connor notes that in Polistena v Mitton; Agnew v Mitton [2011] NSWSC 931 the financial needs of the claimant's husband (he not being an eligible person under the Act) were not considered relevant to the Court's determination of an application for a family provision order. There, Hallen AsJ said at [184]:
... She [the claimant] also sets out a number of needs of her husband, Salvatore, caused by medical and health issues, but since he is not an eligible person, it seems to me that his needs are not relevant other than to demonstrate that part of their joint income and, perhaps, their capital, may be used.
41Reliance was also placed on the statement in Vigolo v Bostin [2005] HCA 11 by Callinan and Heydon JJ at [122] that:
Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question of whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances... 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. (my emphasis)
42There is no doubt that, in considering the second stage of the two limbs of the well-known test in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, consideration is to be given to competing claims on the deceased's bounty (Mr O'Connor citing Lajcarova & Anor v Todorov [2011] NSWSC 522 at [99] and Field v Inglis (Unreported, NSW Supreme Court, Master McLaughlin (as the Associate Judge then was), 8 November 1993) (on appeal: Unreported, NSW Supreme Court, Young J (as his Honour then was), 8 February 1994). In the latter case, the relevance of competing claims was seen as going to the extent that they may have the effect of reducing or even extinguishing the moral duty (and any consequential order based thereon) owed by the testator to the plaintiff, Young J emphasising, however, that in all such claims it is for the plaintiff to establish his or her case upon its own merits.
43Mr O'Connor submits that the financial needs of persons other than Ms Cowmey are relevant to her family provision claim only if those other persons are persons to whom Ms Cowmey owed a moral duty to make provision from her estate (accepting that had he survived, Mr Whibley would have held a competing claim upon Ms Harrigan's bounty as a beneficiary of her estate, but submitting that his next of kin have no such claim on her bounty) and that even though they may be affected by the orders made in respect of the present application for a family provision order in these proceedings evidence of their needs is irrelevant.
44Mr O'Connor submits that there is nothing to support the Court taking into account the financial needs of persons who may receive a benefit (out of the estate on which the family provision claim is made) simply by reason of their entitlement to a beneficial interest in an unrelated estate.
45The difficulty I have with the proposition that such evidence would be of no potential relevance (having regard to the multi-faceted evaluative judgment required in such cases as so described in Foley v Ellis [2008] NSWCA 288 by Basten JA at [3]) is that, in Vigolo v Bostin, Gleeson CJ noted that, when courts come to address the discretionary question of making fit provision for the claimant, they have to consider "the interests of those upon whom the burden of an order might fall" (my emphasis). His Honour went on to note that, in making decisions, courts have regard to "competing claims" and commented that "It would now be regarded as self-evident that a court would be readier to disturb a testamentary provision in favour of a beneficiary, such as a charity, with whom a testator had no connection than a provision in favour of dependent relatives".
46This seems to me to recognise that the interests to which one must have regard (when determining what provision ought be made for a claimant who has satisfied the first stage of the Singer v Berghouse test) would include not only named beneficiaries and those persons with a competing claim on the testator's bounty (the former class of persons not necessarily also being within the latter) but also those who may otherwise be beneficially entitled to a share of the deceased estate (say, through a share of the intestate estate of a since deceased named beneficiary) and who therefore may be affected by the burden of such an order. I see no basis to conclude that the Court could not properly take into account, in determining what is the provision for the applicant for a family provision order, the effect of that order on persons beneficially entitled to a share of the estate though not named in the will.
47If such a conclusion is open to be reached, then I do not consider it appropriate for me to determine (in advance of the hearing) that the evidence sought to be adduced in this case should be not permitted to be filed.
48Mr O'Connor notes that sub-s 61(1) of the Civil Procedure Act 2005 empowers the Court to make such directions as it thinks fit (whether or not inconsistent with rules of Court) for the speedy determination of the real issues between the parties to the proceedings. Reference is also made in this regard to the statutory mandate under s 56 of the Civil Procedure Act (and Part 2, Rule 1 of the UCPR). Mr O'Connor further refers to the Court's power, under s 135 of the Evidence Act 1995 (Cth), to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might (inter alia) cause or result in undue waste of time.
49In this regard, it is submitted that if the legislation contemplated that needs other than those of eligible persons (who have made or may have a claim against the estate) or the beneficiaries of the deceased's estate (as named in the will) were to be taken into account then the class of persons who might seek to adduce evidence on a family provision claim would be endless and that the hearing of Ms Cowmey's application should not be delayed by evidence (said to be irrelevant to her claim) as to the needs of the beneficiaries of Mr Whibley's estate. To the extent that this submission is predicated on the assumption that the evidence must necessarily be relevant, then this begs the question at issue before me. To the extent that it is a "floodgates" argument, Mr Gorrick points out in effect that the potential for additional evidence to be adduced by reason of changing circumstances remains up to the hearing in any case (and would be dealt with as and when it was sought to adduce such evidence in accordance with ordinary principles).
50I accept that if evidence of this kind were (on any likely view of the matter) irrelevant, then the delay and costs that would be incurred if it were permitted to be served (only later to be dismissed as irrelevant) would be a matter in favour of making the ruling sought at this stage. However, I cannot conclude that evidence of this kind can be dismissed as being of no potential relevance.
51Mr Gorrick submitted that while, for present purposes, it could be conceded that there might be a question as to the weight placed on the evidence proposed to be adduced, it could not definitively be said at this stage that evidence of the next of kin of the late Mr Whibley could not potentially be of relevance on the second stage of the Singer v Berghouse limb. I agree. Thus, he submits (and I accept) that the effect of the order now sought would be to deprive those beneficially entitled to a share in Ms Harrigan's estate from the opportunity to put evidence of their circumstances before the Court in circumstances where there is a broad discretion that a Court hearing a family provision claim has to receive a wide range of evidence.
52It is submitted that it would be inappropriate for me to fetter the power of the primary judge to determine in due course what evidence should or should not be allowed to be received at the trial. I agree. If it were unarguable that, on any possible view of the matter, evidence of the kind in question would be inadmissible then that might mean that this was a matter appropriately to be determined in advance of the hearing. But where, as here, it seems to me that it would be within a trial judge's discretion whether or not to admit evidence of this kind (even if it did fall outside s 60(2)(d)) (or to admit it subject to relevance and defer ruling thereon until all the evidence was before the Court) it is not appropriate for me to rule on such an application in advance and so to constrain or confine the ultimate trial judge's discretion in that regard. (On this aspect of the matter, Mr O'Connor in my view quite properly accepted the proposition that, unless I were satisfied that the evidence could not in any circumstance potentially be relevant, then it should be a question left to the trial judge to determine whether he or she considers it of relevance, having regard to all the facts and circumstances of the case.)
53In Bass v Permanent Trustee Co Ltd [1999] HCA 9 at [57], the plurality in the High Court (in the context of an appeal from the preliminary determination of separate questions of law, where there had been no determination as to the underlying facts in dispute) noted that "Once an issue is determined at the interlocutory stage, and the trial continues, the primary judge's hand is tied in respect of all matters of fact and law involved in that determination". Their Honours referred to Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 642, where Diplock LJ said:
Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence.
54I do not consider it to be appropriate to make what would amount to a binding ruling on evidence yet to be filed, in advance of the final hearing of Ms Cowmey's application for a family provision order, in circumstances where a judge later hearing the application might reasonably come to the view that such evidence was of potential relevance and hence should be admitted. The potential cost saving in excluding the evidence at this stage does not seem to me to outweigh the potential prejudice to the next of kin of depriving them of an opportunity to put forward evidence against which the burden of the making of an order for provision could properly be tested. (As to the potential for delay, I am informed that the next of kin inquiry is anticipated to be completed within the next few weeks.)
55Accordingly, I dismiss the application by Ms Cowmey for the orders sought in paragraphs 3 and 4 of her Amended Notice of Motion. As that in effect disposes of the Amended Notice of Motion, I dismiss the motion. I think it appropriate that the case proceed in the ordinary course of case management by the Registrar and I have already stood the matter over to the Registrar's List on 3 April 2012 for this purpose.
56I note that during the hearing of this application I made orders for the joinder of Mr Ian Whibley as authorised representative of Mr Whibley's estate and for his costs of acting in a representative capacity (subject to further order) to be borne out of the estate on an indemnity basis.
57As to the as to the costs of the present application, I consider that they should follow the event and should be borne by Ms Cowmey. I indicated at the close of hearing on the present application that I would give liberty to the parties (if they sought to argue against whatever costs order I ultimately considered should be made) to make such an application.
58Accordingly, the orders I now make will be to dismiss the plaintiff's Amended Notice of Motion filed in Court on 23 March 2012 and to order the plaintiff to pay the defendant's costs of the motion. I give liberty to the parties to apply to my associate within seven days if any variation is sought to that costs order.
[2]
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Decision last updated: 30 March 2012
Parties
Applicant/Plaintiff:
Estate of the Late Violet Eugenie Harrigan - Cowmey