Gorman v Gorman; Estate late Jeanette Mary Gorman

2862/00 - GORMAN v GORMAN; ESTATE LATE JEANETTE MARY GORMAN JUDGMENT 1 HIS HONOUR: There are two notices of motion before me this morning, one a notice of motion seeking an order that the appeal from an order of Acting Master Berecry be struck out as incompetent; the second that an ex parte order, which I made on 26 March 2003, be set aside. 2 It is difficult to describe briefly the nature and course of the proceedings. Essentially they commenced as an application under the Family Provision Act 1982 and that matter came before Master McLaughlin, where the proceedings were virtually settled and the learned Master made orders. 3 However, the orders made on 8 December 2000 were, according to the applicant/plaintiff, not being carried out and on 14 December 2001 he filed a notice of motion in which he sought orders which can be summarized as follows: 1. That the defendants do all things necessary to call in and realise the assets in the estate of Jeanette Mary Gorman, now deceased, and to give effect to the orders of the Court made on 8 December 2000. 2. That the defendants be directed to furnish and verify their accounts relating to their administration of that estate. 4 That motion was put into the short notice list. On 18 November 2002 it was heard by Acting Master Berecry. The probabilities are that it was heard by Acting Master Berecry because of an administrative decision I made, but no actual order was recorded at that time. 5 The matter was determined by Acting Master Berecry on 25 November 2002 in a written judgment Gorman v Gorman [2002] NSWSC 1107. The learned Acting Master noted that there was some debate over the true nature of the relief sought by the plaintiff, and noted that the matter had sometimes been described as an administration suit, an application under s 84 of the Wills Probate and Administration Act 1898, and an application for enforcement of the order made by Master McLaughlin on 8 December 2000. However, he said that it was clear that the plaintiff seeks to enforce the orders of the court by way of application under Pt 68 of the Supreme Court Rules, namely an administration suit directing the executors to perform their executorial duties. 6 The learned Acting Master then dealt with the matters, but the only orders that he made were orders for costs. 7 A notice of appeal was filed. Again, it is principally directed towards the actual orders for costs which the learned Acting Master made, but it also sought an order that the notice of motion that was before the learned Acting Master actually be dismissed, something that he had not done. Notice of appeal was filed on 16 December 2002. 8 On 26 March 2003 in chambers I made the following orders: "Nunc pro tunc direct that all issues may be dealt with by a Master. Leave to any party to move to set aside this order if application made to my Associate no later than 1 April 2003." 9 My recollection is that I made that order after Acting Master Berecry spoke to me in chambers, without the attendance of any parties on the basis of there having been an omission to make an order that everyone had contemplated had been made. I had intended that that order be communicated to everyone concerned because orders should not be made ex parte which may affect rights, without giving someone the opportunity to be heard, or, at least, if they are made there should be ample opportunity for them to be nullified. 10 However, through some administrative problem, the order was not communicated, nor, indeed, has it ever been formally taken out. When it was brought to the attention of the parties the second notice of motion before me today was filed to set aside the order that I had made on 26 March. 11 The notice of motion to strike out the appeal is based on the point that the appeal should have gone to the Court of Appeal and not to a single judge, though it is recognised that leave would have been necessary to mount this appeal in the Court of Appeal. 12 The question as to whether an appeal should go to a single judge or to the Court of Appeal depends on the proper application of Pt 60 r17 of the Supreme Court Rules because unless a case falls within Pt 60 r17 a notice of appeal to this Division from a Master of this Division is the appropriate way to proceed. 13 Part 60.17 provides that an appeal shall lie to the Court of Appeal upon a trial pursuant to Schedule D Pt 3, inter alia, para 4, and also in proceedings determining a question of costs with respect to a matter that has been otherwise finalised. 14 The Master's powers are found in Schedule D to the Supreme Court Rules. Under the schedule the Master has all the powers of the court under the Rules, unless there is an exception made in Pt 2 of the Rules. 15 So far as Pt 68 is concerned there is a limitation where Pt 68 r8(2) or 68(9) are concerned; that being an order for general administration and an order that someone, other than the person nominated in r9, conduct a sale of property. Under Schedule D Pt 3, para 4 the Master has power to hear: "Any (a) trial or hearing of proceedings (except with a jury); or (b) matter (other than a matter in proceedings tried or to be tried with a jury) where referred to a master by an order of a Judge or of the Court of Appeal". 16 The question is whether the learned Master here was conducting a trial or hearing of proceedings, or he was hearing a "matter" under para 4, and, secondly, whether he was exercising his powers under Pt 68 of the Supreme Court Rules or s 84 of the Wills Probate and Administration Act. 17 In my view, the learned Acting Master was not dealing with a trial or hearing of proceedings, he was dealing with a matter under Pt 3(4)(b) of Schedule D of the Rules and, accordingly, an appeal to a single judge is competent. The Rules make a distinction between the final hearing, or the hearing of all the proceedings, and some other aspect of the proceedings. This distinction does seem to come out in some of the considerations that have been made by single judges, though there is nothing definitive on the subject; see eg Klewer v Walton, Levine J [2003] NSWSC 113. 18 The instant case is odd because any trial in this matter seems to have been held before Master McLaughlin. The notice of motion that was before the learned Acting Master was really one of the consequences of the orders made at the trial. It may well have been that, strictly speaking, there should have been new proceedings commenced to enforce the order that was made. 19 The matter is dealt with in Wiblen v Feros (1998) 44 NSWLR 158, 173, where, following something I had said in Wentworth v Wentworth 4 September 1991, unreported, it was said that the way of dealing with the situation, where an order under the Family Provision Act is to be enforced, is to commence an administration suit, or, in clear cases, to take out a summons for payment of a legacy pursuant to s 84. 20 Had the new proceedings been commenced, and had the Acting Master been trying those proceedings, that may well have been a trial. However, where, in the instant case, there is merely a notice of motion, it seems to me that that is not a trial, but it is a "matter". It seems to me there can only be one trial of the proceedings, and once that trial is held everything else must be a matter. Thus even if acting under my nunc pro tunc order the appeal is to a single judge. 21 In any event, the learned Acting Master was dealing with an administration suit, but not a general administration suit. A general administration order is where the court orders that all the moneys be paid into court, and thereafter nothing that the trustees of the estate do can be done without the direction of the court. 22 However, Pt 68 of the Rules is so structured that the court, without making that sort of order, can deal with all other aspects which would ordinarily be dealt with in an administration suit. Moreover, jurisdiction to do that is vested in a Master because it is an ordinary claim under the Rules. Part 68 r9 does not come into contest because there was never any order made that the person, other than the executor, have conduct of the sale of property. 23 Accordingly, the matter was properly before the Acting Master as a Master and the effect of my order on 26 March 2003 really does not take the matter any further. 24 There were some interesting discussion as to whether, in any event, the Acting Master was a de facto judge, but as it is quite clear that the Acting Master had jurisdiction qua being a Master, it is not necessary to get into that area. 25 Accordingly, I dismiss both notices of motion, the first because the point is wrong; the second because it is otiose.

[Counsel addressed on costs] 26 I order that the plaintiff pay the costs of the motion of 9 April 2003. The costs of the other notice of motion are to be costs in the appeal. 27 I extend the time for filing notices of contention to the 29 July 2003. 28 The matter is to be listed in the Registrar's list for mention on 12 August 2003 at 9.30 am.

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