Harris v Bennett and O'Brien [2002] VSC 139

2. I propose to read my judgment. The proceeding before the court is an appeal against an order made in this proceeding by a Master of the Court on 13 February 2002 by which it was ordered that the proceeding be dismissed. The appeal is brought pursuant to Rule 77.05(1) of the Civil Rules of Procedure. Pursuant to Rule 77.05(7) the appeal is by way of a re-hearing de novo of the application made to the Master.

5. The proceeding in this matter was commenced on 10 October 2001 by an Originating Motion. By her Originating Motion which was made by the infant plaintiff, by her litigation guardian, Joanne Harris, her mother; she alleged that she was the grand-daughter of Edward Leo Curtis deceased (the deceased), that he had made his last Will on 22 September 1999; that Probate of the Will of the deceased was granted by this court to the defendants by order made on 19 April 2001 and that by the distribution of the deceased's estate, by his Will, the deceased did not make adequate provision for her proper maintenance and support.

8. The infant plaintiff sought an order that such provision for her proper maintenance and support, as the court thought fit, be made out of the estate of the deceased. It is not in issue in this proceeding that the infant plaintiff was born to her litigation guardian on 31 March 1988 and that she is the daughter of James Curtis, the son of the deceased, who at no time was married to the infant plaintiff's mother.

11. It is not in issue that the deceased died on 20 February 2001 leaving his last Will made on 22 September 1999 and that by order made on 19 April 2001, Probate of the Will was granted to the defendants. By the Will the deceased made no provision for the maintenance and support of the infant plaintiff.

14. The proceeding, commenced by Originating Motion, was brought pursuant to s.91 of the Administration & Probate Act 1958 as substituted by s.55 of the Wills Act 1997, Act No.88 of 1997, which amendment came into operation on 20 July 1998. Pursuant to Rule 16.03(1) of Chapter 2 of the Rules of Civil Procedure the proceeding was required to be commenced by way of Originating Motion.

17. At the time of the filing of the Originating Motion no affidavit was filed in support of the claim commenced against the defendants by the infant plaintiff's Originating Motion. On 9 November 2001 the defendants filed a summons for directions in the proceeding returnable before a Master on 28 November 2001.

20. On that day it was ordered by a Master that any affidavit on which the plaintiff intended to rely be filed and served by 4 p.m. 21 December 2001 and that the further hearing of the summons be adjourned to 13 February 2002.

23. Rule 16.03(2) of Chapter 2 of the Rules of Civil Procedure which was applicable to the proceedings when they were commenced, provides:

"(2) Where an application is in respect of the estate of a person who died after the commencement of Part 7 of the Wills Act 1997 the affidavit in support of the application shall amongst other things, state the acts, facts, matters and circumstances upon which the plaintiff relies to establish that the person on whose behalf the application is made, is a person for whom the deceased had responsibility to make provision."

27. In compliance with the order made on 28 November 2001, on 17 December 2001 there was filed an affidavit sworn by the mother of the infant plaintiff, Joanne Harris. To this affidavit I shall return but for the present it is sufficient to refer to that deposed by Joanne Harris that she was "unable to say for sure whether Sir Leo [the deceased] knew of Posey or that he was aware that she was the child of his son James. However, [she] believe[d] he did."

30. On 7 February 2002 there was filed in the proceeding on behalf of the defendants a summons returnable before a Master on 13 February 2002. That is the same day as the adjourned hearing of the summons for direction.

33. By that summons the defendants sought, "An order pursuant to Rule 23.01(a) that the proceedings be dismissed with costs."

"(1) Where a proceeding generally or any claim in a proceeding - (a) does not disclose a cause of action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the Court, the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim."

40. By their summons the defendants sought an order that the proceedings commenced by the infant plaintiff by Originating Motion be dismissed on the grounds that it did not disclose a cause of action. The summons of the defendants was supported by two affidavits; one sworn by the infant plaintiff's father, James Curtis and the other by Francine Werner. By her affidavit Francine Werner deposed that she had a close relationship with the deceased for 30 years and that for 15 years immediately before his death, they had lived together and that she was a beneficiary of the Will of the deceased. Her affidavit otherwise addressed that deposed to by the infant plaintiff's mother as previously referred to. Otherwise, she did not address any other matter deposed to in the affidavit of Joanne Harris. Francine Werner deposed that she was aware of the proceedings brought by the infant plaintiff, that at no stage was she ever informed of the existence of the infant plaintiff; that at no stage did the deceased ever mention her name to her and that because of the closeness of her relationship with the deceased, she was certain that had the deceased known of the existence of the infant plaintiff he would have told her. This last matter is at best comment of the deponent and not a statement of fact.

43. By his affidavit, James Curtis, the father of the infant plaintiff also dealt with that part of the affidavit of Joanne Harris to which I have referred. He deposed, "I never informed my father that I had a child to the plaintiff's mother. I say that my father did not know of the existence of the plaintiff nor did he know that I was the father of any children other than the children of my marriage." He identified those children by name.

46. He further deposed, "If my father had been aware of the plaintiff's existence, I am certain that he would have approached me about that issue at some time." Other than addressing the matter of receiving an un-opened letter from the deceased which had been written to him by the infant plaintiff and addressed to him at the home of the deceased, he did not specifically address any other matter deposed to in the affidavit of Joanne Harris.

49. On 13 February 2002 after hearing counsel for each of the infant plaintiff and the defendants the Master ordered that the proceedings of the infant plaintiff be dismissed.

52. On 15 February 2002 there was filed on behalf of the infant plaintiff a Notice of Appeal. The appeal was made returnable before the judge in the Practice Court on 26 February 2002.

55. On 25 February 2002 two further affidavits were filed on behalf of the infant plaintiff. One was sworn on 25 February 2002 by Christine Plain, a cousin of the infant plaintiff's mother and the other was sworn by George Harris, an uncle of Joanne Harris, the mother of the infant plaintiff. In addition a further affidavit, sworn by the infant plaintiff's mother on 25 February 2002, was filed on 26 February 2002.

58. On the return of the appeal on 26 February 2002 it was ordered by Beach J that leave be granted to the plaintiff to rely on these three affidavits. This order was made pursuant to Rule 77.05 7(b) which provides in part that on the hearing of an appeal by special leave of a judge, a party to an appeal from an order of a Master, may rely on an affidavit not used before the Master.

61. By their respective affidavits, Christine Plain and George Harris, each deposed that the deceased had been a committee man of a Melbourne sporting club and actively involved in and well-known at the club. Christine Plain is the daughter of George Harris, a former President of the club. She was, for a period, employed at the social club of the sporting club and continued her association with the club after ceasing her employment there in the 1970s. She deposed that it was openly discussed at the club that James Curtis was the father of Posey Harris, the infant plaintiff. George Harris deposed that it was common knowledge at the club that the deceased's son, James Curtis, "Had fathered a child as a result of his relationship with [his] niece, Joanne Harris. That child is Posey Harris, the infant plaintiff in this proceeding."

64. Christine Plain further deposed that she had read the affidavit of her father and that to the best of her information, knowledge and belief, the contents of that affidavit were true and correct.

67. On the hearing of this appeal the evidentiary material before this court on this aspect differs from that which was before the Master.

70. On the hearing of this appeal it was conceded by counsel for the defendants that for the purpose of the appeal it was open to the court, having regard to the affidavits of Christine Plain and George Harris to infer that the deceased knew that his son, James Curtis, was the father of a child born to Joanne Harris, namely Posey Harris, the infant plaintiff.

73. Having regard to the matters deposed to in the affidavits of Christine Plain and George Harris and the concession made by counsel for the defendants, I infer that it is probable that the deceased did know that his son James Curtis was the father of a child born to the niece of George Harris, Joanne Harris, and that that child is the infant plaintiff. Those affidavits I have regard to and the conclusion reached by me are relevant to issues raised on this appeal.

76. On behalf of the infant plaintiff it was submitted that the summary procedure available to the Court, pursuant to Rule 23.01(a) which was relied on by the Master in ordering that the proceedings of the infant plaintiff be dismissed is not available to the Court in a proceeding brought pursuant to s.91 of the Administration & Probate Act and commenced by Originating Motion. It was submitted that historically, a proceeding taken pursuant to that Rule has been regarded as a "pleading summons" and that the issue to be determined in such cases is determined on the pleadings of the plaintiff and that as the present proceeding was commenced by Originating Motion, there was no scope for the application of this rule in this proceeding.

79. I may say that conceptually, I initially had some difficulty in contemplating that the summary procedure available to the court pursuant to that rule, that is that the proceeding may be dismissed if it does not disclose a cause of action, had application to this proceeding.

82. However, conceptually one can well understand that there may be circumstances in which resort may be had by a defendant in proceedings brought pursuant to s.91 of the Administration & Probate Act 1958 to Rules 23.01(1)(b) and (c) in order to make application to the court for a summary judgment on grounds that the proceeding is scandalous, frivolous or vexatious or that it is an abuse of the process of the Court. Support may be gained for such a proceeding being brought pursuant to Rule 23.02(1)(b) and/or (c) when reference is had to s.91(7) of the Administration & Probate Act which was inserted in that Act by s.59(3) of the Wills Act 1997 and which provides:

"(7) if the court is satisfied that an application for an order under s.91 has been made frivolously, vexatiously or without reasonable prospect of success the court may order the costs of the application to be made against the applicant."

86. However, by so referring to this section, I should not be taken to mean that the discretion vested in the court pursuant to the same would be only available to the court on an application for summary judgment in a proceeding brought pursuant to s.91 of the Administration & Probate Act. The discretion vested in the court pursuant to s.91(7) of the Act is available to the court if a defendant is successful in a proceeding brought to pursuant to s.91 of the Act, whether such success was at the time when summary judgment was entered in favour of the defendant in a proceeding brought pursuant to Rule 23.01(1)(b) and/or (c), or at the conclusion of the trial of the proceedings.

89. By its terms Rule 23.01(1) applies to a "proceeding generally" or "any claim in a proceeding." In Rule 1.13 "proceeding" is defined to mean -

"Any matter in the Court commenced by writ or Originating Motion or as otherwise provided by or under any Act or by these Rules."

93. On its face Rule 23.01(1)(a) has application to a proceeding commenced by Originating Motion as well as one commenced by Writ, in which latter event reference must be made primarily made to the statement of claim in order to determine the issue.

96. No authority was cited to me in argument where in such proceedings as commenced by an infant plaintiff in this case, that is under Part IV of the Administration & Probate Act, an application has been made in this State by a defendant pursuant to Rule 23.01(1)(a) or its predecessors for summary judgment on the ground that the proceeding did not disclose a cause of action.

99. In substance and in part it was contended on behalf of the infant plaintiff that such lack of authority should be taken to be an acceptance that the rule is not available to a proceeding brought under Part IV of the Act and commenced by Originating Motion.

102. The fact that no proceeding of the present nature has been instituted in a proceeding brought pursuant to to Part IV of the Act, does not mean that the procedure available to a party pursuant to Rule 23.01(1)(a) is not available and not able to be used by a defendant in such proceeding. It was further submitted on behalf of the infant plaintiff that the proceedings of the nature of this case, were such, that it could not be reasonably contemplated that the procedure for summary judgment under the rules was able to be availed of but rather such proceedings as the present should proceed to trial.

105. In support of his submissions that the summary procedure provided by Rule 23.01(1)(a) is available to the defendant in this proceeding, counsel for the defendant referred to and relied on the decision of Hodgson J in Warren v. McNight[1]. In that case the plaintiff had brought proceedings pursuant to the Family Provisions Act 1982 (NSW), some ten months after the time provided for the commencement of such proceeding.

108. Subsequent to the filing of the plaintiff's affidavits containing the plaintiff's evidence-in-chief, application was brought on behalf of the defendant for summary dismissal of the proceedings on the basis that no reasonable cause of action had been shown. On behalf of the plaintiff it was argued that the Family Provisions Act did not contemplate the procedure for summary dismissal and that it was virtually not possible to determine that such a case was hopeless until the full hearing of the case.

111. His Honour did not accept such submissions and held that on the basis of the material before the court the plaintiff's case should be summarily dismissed. However, before so ordering, he gave to the plaintiff, within a specified time, liberty to file supplementary material as it had been indicated that the plaintiff wished to file such further material, reserving to the defendant the opportunity to bring the matter back before him.

"I do not think the Family Provisions Act 1982 should be read as precluding the application of summary judgment provisions. It does operate in the context where the Supreme Court Act 1970 and the Supreme Court Rules provide for ways in which disputes can be determined and one of those ways is by summary judgment applications. I do not think that one can get from the Family Provisions Act 1982 an intention to preclude the application of that rule. However, in a matter in which so much is at large, and so much subject to discretion, I would accept that it would be in rare cases that the application of the summary judgment provision would be appropriate."

118. It was further submitted on behalf of the defendants that the provisions of s.91 of the Administration & Probate Act should not be read to preclude an application being brought for summary judgment pursuant to Rule 23.01(1)(a).

121. Pursuant to s.91(1) of the Administration & Probate Act it is provided:

"(1) Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased's person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision."

125. It is on the court concluding that a deceased had responsibility to make provision out of his or her estate for a person who has made application for an order, or on whose behalf another person has made application for an order on behalf of that person, pursuant to s.91 of the Act, that on the court also being of the opinion as provided by s.91(3), that the discretion vested in the court to make an order pursuant to s.91(1) of the Act arises.

128. Section 91(3) of the Administration & Probate Act provides:

"(3) the Court must not make an order under sub-section (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person affected by (a) his or her Will (if any); or (b) the operation of the provisions of Part I, Division 6; or (c) both the Will and the operation of the provisions - does not make adequate provision for the proper maintenance and support of the person."

132. It is appropriate also at this point to refer to sub-s. (4) which provides:

"(4) the Court in determining - (a) whether or not the deceased had responsibility to make provision for a person; and (b) whether or not the distribution of the estate of the deceased person as affected by (i) the deceased's Will; or (ii) the operation of the provisions of Part I Division 6; or (iii) both the Will and operation of the provisions - makes adequate provision for the proper maintenance and support of the person; and (c) the amount of the provision (if any) which the Court may order for the person; and (d) any other matter related to an application for an order under sub-section (1) - must have regard to..."

There is thereafter set out in sub-paragraphs (a) to (o) the matters that the Court must have regard to. By sub-s. (p) it further provides that the Court must have regard to, "Any other matter the Court considers relevant".

137. The estate of the deceased has been valued at approximately $12.3m. By the terms of his Will the deceased gave legacies to Francine Werner, said to be worth approximately $4.4m. To his son James the deceased gave his interest in properties, said to be worth some $700,000. There were small legacies given to named persons and the residue of the deceased's estate, valued at approximately $6.6m was divided among his three daughters. No provision was made for the maintenance and support of the infant plaintiff.

140. In this case counsel on behalf of the defendants submitted that on the material filed on behalf of the infant plaintiff and now before the court on this appeal, it could not be concluded that the deceased had responsibility to make provision for the maintenance and support of the infant plaintiff out of his estate. It was submitted on behalf of the defendants that in such circumstances the proceeding should be dismissed as it disclosed no cause of action.

143. In support of his argument that the provisions of Rule 23.01(1)(a) have no application to a proceedings brought pursuant to s.91 of the Act, it was submitted by counsel for the infant plaintiff that, where on trial, the same matters must be had regard to determine the issues whether the deceased had responsibility to make provision for the maintenance and support of the infant plaintiff out of his estate and also the matters provided by sub-ss.(4)(b)(c) and (d), that it is inappropriate for the procedure provided by Rule 23.01(1)(a) to be applied to a case in which application is made pursuant to s.91 of the Act. It was submitted that this was more particularly so in this case, where the claim of the defendants is that the proceeding of the infant plaintiff, does not disclose a cause of action, because on the plaintiff's evidentiary material, it could not be concluded that the deceased had responsibility to make provision for the proper maintenance and support of the infant plaintiff out of his estate.

146. I am of the opinion that circumstances may well be envisaged that, when all material to be relied on by a plaintiff who has brought proceedings pursuant to s.91 of the Act is before the Court, and it is had to regard to, it should be concluded that the proceeding is scandalous, frivolous or vexatious or an abuse of the process of the court. In such circumstances I see no reason why the procedure available to a defendant pursuant to Rule 23.01(1) (b) and (c) could not be used by a defendant to seek to have such proceedings dismissed summarily.

149. The fact that there is no pleading filed on behalf of such plaintiff does not provide reason why the procedure available pursuant to Rule 23.01(1)(b) and (c) could not be had resort to by such a defendant and application entertained by the court pursuant to Rule 23.01(1)(b) and (c) in order that the proceeding be summarily dismissed.

152. On behalf of the defendants it was submitted that if it was concluded by me that Rule 23.01(1)(a) was not available to the defendant in this proceeding, regard should be had to Order 1.14 and the defendant's application should be determined having regard to Rule 23.01(b) and (c), it being submitted that as it could not be concluded that the deceased had responsibility to make provision for the maintenance and support of the infant plaintiff out of his estate, the proceeding was vexatious and an abuse of the process of the Court.

155. It is pursuant to Rule 16.03(2) of Chapter 2 of the rules to which I have referred and which is applicable to this case, that is provided that the affidavit or affidavits in support of an application made pursuant to s.91 of the Act shall provide amongst other things, "The acts, facts, matters and circumstances upon which the plaintiff relies to establish that the person on whose behalf the application is made is a person for whom the deceased had responsibility to make provision."

158. The fact that in such a case as this, notwithstanding there are no pleadings, I am of the view that the court can ascertain that which a plaintiff relies on to establish that the deceased had responsibility to make provision for the maintenance and support of such plaintiff out of his estate.

161. Where, as in this case, that relied on by the defendants is the contention that on the material before the court, as relied on by the plaintiff, it could not be held by the court that the deceased had responsibility to make provision for the maintenance and support of the infant plaintiff, I see no reason why the Court can not and should not entertain an application for summary judgment pursuant to Rule 23.01(1)(a). There is nothing in the wording of s.91 of the Administration & Probate Act which leads me to conclude that there was thereby expressed an intention that the provisions of Rule 23.01(1) would be not applicable to a case brought pursuant to that section.

164. Accordingly, I conclude that pursuant to Rule 23.01(1)(a) the Court has jurisdiction to determine whether a proceeding brought pursuant to s.91 of the Administration and Probate Act 1958 should be dismissed summarily on the ground that it discloses no cause of action.

167. I turn to consider the material before the Court in order to determine whether the proceeding brought by the infant plaintiff discloses a cause of action against the defendant and/or whether such material provides good grounds for argument that such a cause of action is disclosed.

170. The Originating Motion alleged that the infant plaintiff was a grand-daughter of the deceased; that the deceased died on the date referred to and the Probate of his Will made on 22 September 1999 was granted to the defendants on 19 April 2001. None of these matters are in issue.

173. The Originating Motion further alleges that the distribution of the deceased's estate by his Will was such as not to make adequate provision for the proper maintenance and support of the infant plaintiff. It does not contain an allegation that the infant plaintiff was a person for whom the deceased had responsibility to make provision for her maintenance and support out of his estate.

176. Clearly, that is the very basis on which this proceeding is brought. Counsel for the defendants took no point that the Originating Motion by its terms failed to make the allegation central to this application, that being, that the infant plaintiff was a person in respect of whom the deceased had responsibility to make provision for her maintenance and support out of his estate.

179. I have regard to the conclusion that I have reached in this proceeding and to which I have referred that it is probable that the deceased knew of the fact that his son James had a daughter by Joanne Harris, which daughter was the infant plaintiff.

182. I next turn to the affidavit of Joanne Harris sworn on 13 December 2001 and the exhibits to the same, to consider whether the proceeding discloses a cause of action and, in particular in this case, whether it discloses that the infant plaintiff was a person for whom the deceased had responsibility to make provision for her proper maintenance and support out of his estate.

185. I address the matters deposed to in the affidavit as relevant to matters to which the court must have regard pursuant to s.91(4)(a), (e) - (p). From that affidavit and the exhibits to it, the following facts appear in addition to the last matter to which I have referred and to which I have determined; that being the relationship of the infant plaintiff to the deceased and that he was aware that his son James had a child by Joanne Harris, which child is the infant plaintiff.

188. Those matters of fact are that the infant plaintiff is 14 years of age; that the value of the estate of the deceased is approximately $12,337,634; that by the terms of his will it appears that the deceased had a son James, three daughters and grandchildren other than the infant plaintiff; that a substantial bequest was made to Francine Werner, who had the aforesaid relationship with the deceased; that counsel for the defendants said that the value of that bequest was some $4.4m; that a bequest was made to his son, James, which counsel for the defendants has said was of the value of some $700,000; that there was some particular bequests and that otherwise, the residue of the estate was to be divided among the deceased's three daughters, which residue was said to be valued at approximately $6.8m. Further, from that affidavit there appears the following facts, that the infant plaintiff lives with her mother; that the infant plaintiff's mother is employed as a nurse, earning approximately $41,250 per annum; that the assets of the infant plaintiff's mother are moderate, which includes a unit in which she and the infant plaintiff live, valued at $280,000 and subject to a mortgage in the amount of $150,000, that she has superannuation in a sum of $28,160 and owns a motor car valued at some $22,000; that pursuant to orders of the Family Court of Australia, James Curtis pays towards the maintenance and support and education of the infant plaintiff $200 per week, school fees for her to attend Firbank Grammar School, and for her to attend interstate and overseas excursions, and the costs of private health insurance; that except for meeting his financial obligations to the infant plaintiff, James Curtis, does not accept her as his child, and has not responded to any endeavour made by the infant plaintiff for him to see her. From that latter matter it is to be inferred, in my view, that it is likely that James Curtis does not and will not regard himself responsible, in any way, for the maintenance and support of the infant plaintiff other than that which he is obliged to pay pursuant to the order of the Family Court of Australia; Further from the affidavit of Joanne Harris the following facts appear - the infant plaintiff has been subject to an auditory perception assessment, which was conducted on 22 August 1996 and which assessment in part identified that her auditory memory processing skills were significantly delayed, and that she had problems with her short term auditory memory; that the infant plaintiff on 14 December 2001, was examined by a psychologist from whose report it appears that the infant plaintiff has difficulty with reading and writing, and that she has been significantly affected by James Curtis' apparent rejection of her, which may cause her to be vulnerable to emotional stresses as she matures through adolescence; and that the deceased had not contributed towards the maintenance of the infant plaintiff before his death.

191. Counsel for the defendant submitted that the fact that the infant plaintiff was the grandchild of the deceased alone, and as was the case here, there being no other relationship existing between her and the deceased; that he had no responsibility to make provision for her maintenance and support out of his estate.

194. He submitted further that there was no other fact, matter or circumstances in this case, which could give rise to that responsibility, and accordingly, the infant plaintiff's case had not disclosed a cause of action, and therefore, it must fail.

197. In support his submission, counsel for the defendants made reference to a number of decisions of the Supreme Court of New South Wales and of the Court of Appeal of that State, which dealt with Testator Family Maintenance claims and specifically with reference to the provisions of the Family Provisions Act 1982 (N.S.W.) including Cherton v. Christian[2], Mahoney JA 243-4; Re Fulop (dcd)[3] and Tsivinsky v. Tsivinsky[4].

200. The provisions of the New South Wales legislation are very different from the provisions of s.91 of the Administration and Probate Act 1958 which generally expanded and extended the category of persons who may pursue and have the benefit of an order that provision be made out of the estate of a deceased person than was previously the case. Pursuant to the provisions of the New South Wales legislation, a court may order that provision be made from the estate of the deceased for the benefit of an "eligible person".

203. By definition "eligible person", includes, amongst others, a person "(i) Who was at any particular time wholly or partly dependent upon the deceased person, and (ii) who is a grandchild of the deceased person ... "

206. I do not, on this appeal, find it necessary to analyse and refer to those decisions. However, I refer to that said by Mahoney J.A. in Tsivinsky v. Tsivinsky at p.16, where with reference to Goodman v. Windeyer (1980) 114 C.L.R. 490 he said:

"Essentially what an applicant must show is that the testatrix owed him or her a duty. That is the manner in which conventionally the matter has been described. The Parliament has given to the court the power to substitute its view of what ought to be done with the testatrix's property for that which the testatrix herself formed. But it has not allowed the courts to do this merely because, as it has been put, it would be `nice' or because it would demonstrate familial generosity. The power is to be exercised if and only if the testatrix had a duty to the application and to the extent that she failed to carry out that duty."

210. In my opinion, in determining whether the infant plaintiff was a person for whom the deceased had responsibility to make provision for her maintenance and support out of his estate, the question that is to be addressed is whether having regard to the matters that must be taken into account pursuant to s.91(4)(a)(e) to (p), did the deceased owe the infant plaintiff a moral duty to make such provision.

213. In Coombes v. Ward[5] I held that "responsibility" in s.91(1) of the Act is to be read to mean "a moral duty". That decision, as I am aware, is under appeal, but no argument was addressed to me by counsel in this case which causes me to alter my opinion at this matter.

216. In Sherlock v. Guest[6] Beach J had before him an application by a son of Dudley Sherlock Deceased and four of his grandchildren, whose ages ranged from 25 to 32 years of age, for an extension of time to bring proceedings pursuant to s.91 of the Administration and Probate Act 1958.

"There is no moral obligation upon a grandfather to make provision for the maintenance and support of his grandchildren, simply by virtue of the existence of such a relationship. Such a moral obligation will rest on the parents of the grandchild, but not the grandparents. However, such a moral obligation can be created in a particular case by reason, for example, of the care and affection given by a grandchild to his or her grandparent. Since the recent amendment of s.91 of the Administration and Probate Act by s.55 of the Wills Act 1997, the Court has power to order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision. If therefore a grandchild can satisfy the criteria spelt out in s.91, he or she may be entitled to such an order, not because he is a grandchild per se, but because he or she satisfies the new criteria. In the present case there is no evidence before me which enables me to say that it is arguable that any of the grandchildren satisfy the criteria. As in the case of the first plaintiff there is simply no evidence before me as to the present financial situation of the grandchildren."

223. His Honour referred to the fact, in his judgment, that the inadequacy of the material before the court had been the subject of discussion during the hearing of the application, but that notwithstanding that, the applicant had proceeded. The application before His Honour was refused.

226. In Leahey v. Trescowthick[7], Warren J in the context of the facts in that case said at paragraph 37:

"... the grand-parents had no direct parental or grand-parental duty to provide for any of their grandchildren including each of the plaintiff's. The fact that the deceased and his wife during their lifetime made generous gifts towards some of the grandchildren, including the plaintiffs and in particular made generous contributions towards the education of some grandchildren cannot, in my view, be construed or characterised as an obligation or responsibility on the part of the deceased to any of the grandchildren."

230. It is apparent that those remarks, were made by Her Honour, with reference to and having regard to the facts in that particular case.

233. In this proceeding before the court, by way of appeal, the infant plaintiff did not rely alone on the fact that there existed a family relationship between her and the deceased, that being that she was his grand-daughter, in order to establish that the deceased had responsibility to make provision for her maintenance and support out of his estate. The infant plaintiff did not rely on that family relationship alone as founding the cause of action in these proceedings. She relied also on the other matters to which I have referred, to give rise to the cause of action which she relies on in this proceeding, that is that the deceased had the responsibility to make provision for her maintenance and support out of his estate.

236. Those matters are each relevant matters when regard is had to the provisions of s.91.4(e) to (p) and must be had regard to when determining whether the proceedings disclose that the infant plaintiff has a cause of action against the defendants.

239. In Dey v. Victorian Railways Commissioners[8], application was made on behalf of the defendant that the action be dismissed on the ground that it was frivolous, vexatious and an abuse of the process of the court. Dixon J at p.91 said:

"The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent the plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it, for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined, whether a fact or a law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of the process."

243. At pp.91-92 Dixon J cited, with approval, that said by O'Connor J in Burton v. Shire of Bairnsdale[9] where His Honour said:

"Prima facie every litigant has a right to have matters of law as well as matters of fact decided according to the ordinary rules of procedure which give him full time and opportunity for the presentation of his case to the ordinary tribunals and the inherent jurisdiction of the court to protect its process from abuse, which give him full-time an opportunity for the presentation of his case, to the ordinary tribunals and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of those rights and summarily disposing of the action as frivolous and vexatious will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed."

247. Such observations by Dixon and O'Connor JJ have equal application to a summons brought pursuant to Rule 23.01(1)(a) as they have to a proceeding brought pursuant to Rule 23.01(1)(b) and/or (c) for summary judgment to be entered in favour of a defendant.

250. The matter for me to determine on this appeal is whether it has been established by the defendants that on the material before the court, it is clear and beyond argument that the proceedings of the plaintiff do not disclose a cause of action, that is in this case that there is not disclosed that the deceased had responsibility to make provision for her maintenance and support out of his estate.

253. If that is not established by the defendants, but rather on the material before the court, it is shown that there exists evidence of matters which give rise to a real question to be determined, whether the deceased had that responsibility and that is the question to be determined in order to decide whether the proceeding discloses a cause of action, then summary judgment should not be entered in favour of the defendants as sought here.

256. For the defendants to succeed on their summons before the court, it must be established, at this time, that the infant plaintiff's cause of action, that is the deceased had responsibility to her, as referred to, is so untenable that it cannot possibly succeed.

259. The conclusion that I have reached is that the defendants have not established that this is the case. In my opinion on the facts before the court in this proceeding and to that to which I have referred, demonstrate that there exists foundation for a real question to be determined whether the infant plaintiff has a cause of action against the defendants, that is that the deceased had responsibility to her to make provision for her maintenance and support out of his estate. It cannot be said that such proposition is so obviously untenable that the infant plaintiff cannot possibly succeed.

262. Accordingly, the application of the defendants as brought by their summons must fail.

265. Similarly, the defendants secondary contention that the infant plaintiff's proceedings against the defendant is scandalous or vexatious and/or an abuse of the process of the court must also fail.

268. For these reasons the appeal of the plaintiff is upheld.

(1) that the appeal of the infant plaintiff against the Orders of the Master made on 13 February 2002 is upheld.

(2) that the Orders of the Master made on 13 February 2002 are set aside.

(3) that the summons of the defendants filed on 7 February 2002 is dismissed.

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HIS HONOUR: Yes, are there any submissions as to costs?

MS LYLE: Your Honour, we will seek costs on a solicitor/client basis but I recall Your Honour's remarks of Friday when Mr Boaden, my learned leader Mr Southall said that they were not available today. I think on Friday Your Honour gave an indication that he would be willing to adjourn the question of costs from today. I have spoken to Mr Southall this morning and it was his suggestion that it would take probably half an hour and it might be convenient to list it at 9.30 or ten one morning this week.

HIS HONOUR: Do you agree with that position Ms Noy?

SOLICITOR: Yes, Your Honour.

HIS HONOUR: Leave the question of costs. Very well. It is further ordered: (4) that the question of the costs of this appeal and the summons of the defendants be reserved.

What I will do ladies is to have my Associate communicate with your respective counsel, to select a date one morning so that the question of costs can be dealt with. I will not specifically order it now but it is likely that I will have my Associate indicate when we can select a date, that outlines of submissions be provided but I won't specifically order that now.

SOLICITOR: Your Honour, it is an appropriate time to raise the question of the indemnity certificate now or next week, I'm just wondering if it's an - - -

HIS HONOUR: When you say an indemnity certificate what do you mean?

SOLICITOR: Indemnity certificate in respect of the respondent's costs and - - -

HIS HONOUR: I see, the Appeal Costs Act.

SOLICITOR: Yes.

HIS HONOUR: Perhaps that can also be dealt with Ms Noy when it comes you being unsuccessful in the proceeding, your side being unsuccessful, you wish to make an application for an indemnity certificate then that can be dealt with at the same time as I deal with the costs of proceedings. Are you content with that course. I won't specifically make any order as to it now, but all those questions of costs and any indemnity certificate, or if you wish I can order and just vary that last order: the question of costs of the appeal of the defendants and any matter as to the granting of an indemnity certificate be reserved. Are you content with that?

SOLICITOR: Thank you, Your Honour.

HIS HONOUR: Yes.

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[1] [1996] NSWSC 419; (1996) 40 N.S.W.L.R. 390.

[2] (1988) 13 N.S.W.L.R. 241.

[3] (1987) 8 N.S.W.L.R. 679.

[4] Court of Appeal N.S.W. unreported 5 December (1991).

[5] Unreported [2002] VSC 61.

[6] Unreported 1999 V.S.C. 431.

[7] Unreported 1999 V.S.C. 409.

[8] [1949] HCA 1; (1949) 78 C.L.R. 62.

[9] [1908] HCA 57; (1908) 7 C.L.R. 76 at p.92.