Indjic v Stojanovic

Supreme Court of NSW|2020-02-18|Before: Hallen J, Handley JA

SWCA 10 Howard v Batistich [2019] FCA 525 HRDW v HSJL [2006] FamCA 257 Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160 In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 Ingamells v Western Australian Trustees Ltd (Supreme Court (WA), 5 March 1993, unrep) Kay v Archbold [2008] NSWSC 254 KQ v HAE [2007] 2 Qd R 32; [2006] QCA 489 Light v Anderson (Court of Appeal (NSW), Handley JA, 4 August 1992, unrep) Lodin v Lodin (2017) 16 ASTLR 576; [2017] NSWCA 327 Lynam v Director General of Social Security (1983) 52 ALR 128 MacPherson v R (1981) 147 CLR 512; [1981] HCA 46 Manuel v Lane [2013] NSWCA 61 Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838 McKenzie v McKenzie [1971] P 33 Moby v Schulter (2010) FLC ¶93-447; [2010] FamCA 748 Nominal Defendant v Cordin (2017) 79 MVR 210; [2017] NSWCA 6 Oscar v Traynor [2008] FamCAFC 158 Page v Page (2017) 16 ASTLR 331; [2017] NSWCA 141 Petersen v Gregory; Estate Glen Alfred Petersen [2007] NSWSC 8 Piras v Egan [2008] NSWCA 59 Pollock v Hicks [2015] NSWCA 122 Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359; [2011] NSWCA 40 R v Zorad (1990) 19 NSWLR 91 Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) Re Estate of Sigg (dec'd) [2009] VSC 47 Re Fulop, Deceased (1987) 8 NSWLR 679 Re Sullivan and Department of Industry, Science and Technology (1998) 51 ALD 767 Richardson v Armistead [2000] VSC 551 Robson v Quijarro [2009] NSWCA 365 Sadiq v NSW Trustee and Guardian [2015] NSWSC 716 Sadiq v NSW Trustee and Guardian (2016) 14 ASTLR 577; [2016] NSWCA 62 Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 2) [2010] FCA 275 Sassoon v Rose [2013] NSWCA 220 Scragg v Scott [2006] NZFLR 1076 Shephard v Blueberry Farms of Australia (Corindi) Ltd (2001) 162 FLR 339; [2001] FMCA 2 Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Sullman v Sullman [2002] NSWSC 169 Szypica v O'Beirne [2013] NSWSC 297 Thomas v Times Book Co [1966] 1 WLR 911 Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337 Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liq) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 Webb v Ryan [2012] VSC 377 White v Barron (1980) 144 CLR 431; [1980] HCA 14 Wilcox v Wilcox [2012] NSWSC 1138 Winter v Fleeton [2002] WASCA 73 Ye v Fung [2006] NSWSC 243 Yee v Yee [2017] NSWCA 305 Yesilhat v Calokerinos [2015] NSWSC 1028 Zahra v Francica [2009] NSWSC 1206 Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 Category: Principal judgment Parties: Stoja Indjic (Plaintiff) Boris Stojanovic (Defendant) Representation: Counsel: Mr K Morrissey (Plaintiff) Defendant (self-represented)

Solicitors: MWK Lawyers (Plaintiff) Defendant (self-represented) File Number(s): 2018/374311

Introduction

HIS HONOUR: In this case, the Plaintiff, Stoja Indjic, seeks a family provision order out of the estate of Drago Stojanovic (the deceased). A family provision order is one made by the Court, under Chapter 3 of the Succession Act 2006 (NSW) (the Act) in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.
The proceedings were commenced by Summons filed 14 November 2018. The hearing commenced on 17 February 2020 and concluded within the two days it had been allotted.

The Defendant - litigant in person

The Defendant in the proceedings is Borislav ('Boris') Stojanovic, who is a now adult child of the deceased. In clarifying the particulars of the relief that the Defendant sought in response to the Plaintiff's claim for provision, he consistently stated that no provision should be made for the Plaintiff and that her claim should be dismissed. He continued to make that submission at the hearing. In addition, he argued that the Plaintiff should pay his costs of the proceedings in the event that she is unsuccessful.
The matter had been in the Family Provision List on a number of occasions, for directions, the first occasion being on 8 February 2019, when Mr K Morrissey of counsel appeared for the Plaintiff and when the Defendant appeared in person. On that occasion, and on each subsequent occasion that the matter was before the Court, the court explained to the Defendant that the matter appeared to be factually, and legally, complex, and that he could be at some disadvantage by appearing without legal representation. It was repeated that he should seek the assistance of lawyers in the conduct of the proceedings on behalf of the estate, as, without any disrespect intended, he lacked the professional skill and ability resulting from an education in, and understanding of, the relevant law and procedure and, also lacked the objectivity and emotional distance from his own case.
On each occasion, that the matter has been listed for directions, the Defendant confirmed that he would not obtain legal representation, and that he wished to continue to act for himself. It was difficult to know, precisely, what had driven that decision, as the estate has a gross value in excess of $1 million but it appeared to be the result of the exercise of a free and informed choice made by the Defendant.
Even at the commencement of the hearing, he stated at Tcpt, 17 February 2020, p 1(42-44): "… I'm going to attempt to defend the case myself as best I can. I think I can make a fair effort in trying to disprove the claimant's claims and their, their attempt at a successful verdict."
Despite his appearance at the pre-trial directions hearing on 10 December 2019, when the matter was listed, for hearing, in the Family Provision Running List commencing on 17 February 2020, and despite being provided with a written copy of the directions made on that date for the orderly conduct of the hearing, the Defendant failed to comply with any of the directions made. However, at the commencement of the hearing, a document headed "Affidavit of Boris Stojanovic 18/12/2019", was handed up and, without objection, relied upon.
A Schedule of Assets and Liabilities prepared on behalf of the Plaintiff, was marked Ex JS 1. (I shall return to these documents later in these reasons, the contents of both of which required amendment.)
In view of the fundamental right of a litigant to appear in person, enshrined in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.1(1), the Court accepted the Defendant could continue without legal representation.
At the hearing, the Defendant, again, appeared without any legal representative and without the assistance of a "McKenzie friend" (that name being derived from the decision of the English Court of Appeal in McKenzie v McKenzie [1971] P 33).
The Court has a duty to ensure that the trial is fair and determined in accordance with the law and with the need for as cheap and efficient judicial determination as is feasible. Of course, this duty applies whether the Defendant has been unable to obtain legal representation, or if a party appears self-represented by his, or her, own choosing, or where the party is represented: Tomasevic v Travaglini (2007) 17 VR 100 at 129-130 [139]-[142]; [2007] VSC 337 at [139]-[142] (Bell J); see also MacPherson v R (1981) 147 CLR 512 at 546-547 (Brennan J); [1981] HCA 46.
The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95 (The Court); Hamod v New South Wales [2011] NSWCA 375 at [309]-[316] (Beazley JA, Giles and Whealy JJA agreeing). Of course, the application of the general principle varies depending on the particular circumstances of the case.
Yet, to proceed without legal representation, or to dismiss one's lawyers during the course of proceedings, should not be an advantageous procedural step. (There was no suggestion, in this case, that the Defendant was attempting to manipulate the system.)
The Defendant was told that the Court's duty was not to advise him of how to conduct his case; nor to advise him of how his rights should be exercised; nor to become his advocate or stand in the shoes of legal representatives had they been retained. Nor would the Court unduly interfere with the conduct of the trial on his behalf. Any assistance would be proportionate in the circumstances and would be given not for the purpose of affording an advantage to him as a self-represented litigant: Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) at 26-27 (Samuels JA); Cicek v Estate of late Solomon [2014] NSWCA 278 at [126]-[130] (Ward JA, Meagher and Barrett JJA agreeing); Tomasevic v Travaglini at [139]-[142] (Bell J); endorsed in Pollock v Hicks [2015] NSWCA 122 at [91] (Gleeson JA, Macfarlan and Emmett JJA agreeing).
The Defendant was also told that the duty to ensure a fair trial applies to both parties. Any assistance given to him would be limited to what was necessary so far as was reasonably practicable, to overcome the procedural disadvantages that he faced as a self-represented litigant by reason of not being legally trained: Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40, at [74] (Buss P, Murphy and Vaughan JJA).
As he had been told at different directions hearings, he was also told that the matter was one of some complexity, and that if he chose to represent himself, he would have to accept the consequences of that choice and that the Court would not become integrally involved in the formulation of the Defendant's case on his behalf.
The Defendant was also informed that the Court would not permit him to give evidence from the bar table without oath or affirmation. The Court then went on to explain how the case would proceed, commencing with the reading of the affidavits onto the Court record; informing him of his right to object to any part of the affidavit evidence relied upon by the Plaintiff that he might regard as inadmissible; an explanation of the order of calling witnesses; informing him of his need to enter the witness box to be cross-examined (as he had been asked to attend for cross-examination); his right to cross-examine the Plaintiff; and to provide an explanation of the consequences of not cross-examining a witness. The guidance did not extend to advising him of how his rights should be exercised.
The Court also provided him with an explanation of the role and purpose of cross-examination, and the necessity for him to put to each witness whose affidavit was read, any aspects of her, or his, evidence that he proposed to contradict or claim was false, so that he, or she, would have an opportunity to provide an explanation. (Clearly, he seemed to take account of what had been said to him but, unsurprisingly, he struggled with what was required for an effective cross-examination.)
The Defendant was shown the Outline of Submissions that had been received from counsel for the Plaintiff and he confirmed that he, too, had received a copy. A copy of the relevant sections of the Act upon which he would need to address the Court, including ss 57, 59 and 60, was provided to him. He was told that there was a difference between evidence and submissions and that what he said during submissions would not be regarded as evidence.
The Defendant did not provide any adequate reasons for not having complied with the directions of the Court regarding the service of updating affidavits or the provision of an outline of submissions in writing other than that he had "misunderstood the instruction" I had given: Tcpt, 17 February 2020, p 3(50) - p 4(36). He was also unable to provide a proper explanation for not responding to an email sent on 11 February 2020, at my request, by my Associate, to him and to counsel for the Plaintiff reminding each of the directions made which, at least in part, had not been complied with: Tcpt, 17 February 2020, p 4(38) - p 5(11).
The parties were also informed that the Court would not devote unlimited time to listening to unmeritorious arguments, or irrelevant cross-examination by either side: Antoun v R (2006) 80 ALJR 497 at 502 [22]; [2006] HCA 2 at [22] (Gleeson CJ).
As has been noted, "… the right of a party to be given an opportunity to be heard … includes prior notice of the issues to be addressed, an opportunity to call evidence, an opportunity to make submissions and the right to have his or her evidence and submissions given appropriate consideration by the decision-maker. Whether such opportunities have been made available is a different question from whether they have been availed of. A party who has a reasonable opportunity to present his, or her, case and who fails to make the most of it, cannot later be heard to complain that there has been procedural unfairness": Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568 at 579 [50]; [2014] NSWCA 293 (Basten JA, Barrett and Ward JJA agreeing).
Both parties were referred to my decision in Sadiq v NSW Trustee and Guardian [2015] NSWSC 716 and the decision of the Court of Appeal in Sadiq v NSW Trustee and Guardian (2016) 14 ASTLR 577; [2016] NSWCA 62, in which the appeal was dismissed. A copy of each of the reasons of each Court was provided to the Defendant (because he may not have had access to New South Wales Caselaw).
I have no doubt that the Defendant is an intelligent man. He seemed to have no difficulty understanding what was said to him. Indeed, in response to a number of questions, the Defendant confirmed that he understood the process that he had to follow: Tcpt, 17 February 2020, p 5(50) - p 6(20).
It is never easy to act as a litigant in person, particularly against experienced legal opposition. However, the Defendant displayed an insight into the case that he was required to present and he was able to marshal some arguments in support of his case. In addition, throughout the proceedings, he was polite, calm, and he acted with appropriate respect to the Court and to counsel for the Plaintiff. He properly participated in the hearing and his presentation of the case in court has not contributed to the assessment of his credit on the facts.
Naturally, it was necessary for there to be some degree of tolerance and assistance, within the constraints of the duty to ensure a fair trial to both parties, given to the Defendant as he was clearly without any legal knowledge or training. Overall, I am satisfied that he understood the nature of the proceedings and that he conducted them as well as he could. As will be read, he has been successful.
I should also note that Mr Morrissey of counsel, who appeared for the Plaintiff, did not take pedantic objections to the Defendant's affidavit evidence and, even though he might have objected to some matters, he did not do so. Furthermore, during his cross-examination, he questioned the Defendant politely and calmly, and he allowed the Defendant a reasonable opportunity to answer the questions put to him. Throughout the proceedings he treated the Defendant with respect, and, if I may say, fairly.

Some formal matters

Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order. The Plaintiff asserted in her affidavit of 4 February 2019, and it was submitted in counsel's written Outline of Submissions that she was a person with whom the deceased was living in a de facto relationship at the time of his death: s 57(1)(b) of the Act.
A reading of the Defendant's first affidavit affirmed on 30 May 2019, leads me to conclude that he disputed that the Plaintiff was an eligible person under s 57(1)(b) of the Act. At the commencement of the hearing, he confirmed that he proposed to dispute her eligibility on this ground.
Then, when the question of other bases of eligibility was raised by the Court, counsel for the Plaintiff submitted that if eligibility under s 57(1)(b) was not established, he would be submitting that the Plaintiff is a person (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who was, at that particular time or at any other time, a member of the household of which the deceased person was a member: s 57(1)(e) of the Act. Later still, on the second day of the hearing, counsel for the Plaintiff attempted to make the further alternative submission that the Plaintiff was a person with whom the deceased was living in a close personal relationship at the time of the deceased's death: s 57(1)(f) of the Act; Tcpt, 18 February 2020, p 91(14-18).
The Plaintiff had not, previously, relied upon either alternative basis of eligibility. There was no reference to "dependency" in the Plaintiff's evidence or in her counsel's written Outline of Submissions. Even if there had been, counsel had not mentioned (prior to his written Supplement to the Plaintiff's Case Outline received at the conclusion of the first day of the hearing) s 59(1)(b) of the Act, which provides in the case of a person who is an eligible person by reason only of sub-paragraph (d), (e) or (f), of the definition of "eligible person" in s 57, having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application. (Indeed, he had not mentioned "factors which warrant the making of an application" at all: Tcpt, 17 February 2020, p 8(23-36).
I shall return to this aspect, and the consequences of the lateness of the proposed reliance on other grounds of eligibility, by counsel for the Plaintiff, later in these reasons.
It was not in dispute that the Plaintiff commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act: Tcpt, 17 February 2020, p 9(12-18).
As the deceased left a Will that dealt with all of his property, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.
A family provision order may be made in relation to property that is not part of the deceased's estate, but is designated as "notional estate" of the deceased by an order under Pt 3.3 of the Act: s 63(5). "Notional estate" of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.
In this case, the Plaintiff did not seek an order designating property as notional estate of the deceased. Counsel appreciated that the Court must not make a notional estate order unless it is satisfied that (a) the deceased person left no estate; or (b) the deceased's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made; or (c) provision should not be made wholly out of the deceased's estate because there are other persons entitled to apply for family provision orders or because there are special circumstances: s 88 of the Act.
The Defendant did not state that he was going to make any application for commission, or percentage, for his pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).

Background Facts

It is next convenient to set out some background facts that are not the subject of dispute between the parties. To the extent that any are in dispute, what follows should be regarded as the findings of the Court.
The deceased was born in April 1939 and died on 27 June 2018 aged 79 years.
The deceased was married to Bosiljka Stojanovic. The marriage was dissolved by a divorce order made in June 1998, which became absolute in July 1998, and which terminated the marriage.
There were two children of the marriage, being Dragoslav (called "Rodney") Stojanovic, who was born in May 1965, and the Defendant, who was born in Australia, in February 1972. Three members of the family had come to Australia from the Socialist Federal Republic of Yugoslavia (as it then was) in 1969.
There is evidence that in September 2015, an Apprehended Violence Order against Rodney was made. It appears, also, from the evidence, that Rodney was made bankrupt as a result of a debtor's petition, on 14 December 2018 and that his trustee is the Official Trustee in Bankruptcy. He is currently an undischarged bankrupt. He played no part in the proceedings.
The deceased's last Will was one made on 28 February 2007, Probate of which Will was granted, by this Court, to the Defendant on 21 September 2018.
In that Will, the deceased relevantly: 1. appointed the Defendant as the sole executor and trustee of his Will; 2. left a specific legacy of $20,000 to "my friend and cleaner MOJA BADA DAME PRATI for her own use and benefit absolutely"; 3. devised his one-half share in a property at George Street Erskineville (the Erskineville property) to Rodney (referred to as Dragoslav Stojanovic in the Will) for his own use and benefit absolutely, and noted that "I have purchased for him a home unit at Canley Vale for a sum of $27,000.00 sixteen years ago in his name which he has since sold to satisfy his gambling habit"; 4. devised his property at Kent Street Newtown (the Newtown property) to the Defendant for his own use and benefit absolutely; 5. devised his house at Zaxalska Novic Sad, Serbia (the Serbian property) to his "sons … DRAGO … AND BORIS …"; and 6. left the rest and residue of his estate to be divided "as to 50% between my brother's son and daughter … [and] as to the remaining 50% between my sister's sons …".
At the commencement of the hearing, it was confirmed that "MOJA BADA DAME PRATI", in the Serbian language, is not a person. (The Defendant asserted that the meaning of the words was "my friend and cleaner" and that the person referred to was the Plaintiff: Tcpt, 17 February 2020, p 11(32-41).)
The Plaintiff, by her counsel, denied that if the words meant "my friend and cleaner", the person referred to was not her, with the result that there is no provision made for her in the Will of the deceased. (The dispute does not have to be determined as the Plaintiff asserted that no provision was made for her in the Will. The Defendant has not paid that amount to her.)
There was really no dispute that the Newtown property has been registered in the name of the Defendant. The Transmission Application dated 2 October 2018 revealed that he was seeking to be registered on title "being entitled as executor of the will … of the deceased registered proprietor … pursuant to probate …": Tcpt, 17 February 2020, p 12(50) - p 13(40); Ex P1/99.
The Plaintiff annexed, to her Affidavit affirmed on 4 February 2019, a copy of the Reasons for Decision of the New South Wales Civil and Administrative Tribunal, Guardianship Division, in which the Public Guardian had been appointed as the guardian of the deceased "with the authority to make decisions about his accommodation; services; health care and medical and dental consents". The Tribunal also committed the estate of the deceased to the NSW Trustee and Guardian.
The application to the Tribunal had been made by a social worker at the Royal Prince Alfred Hospital. Present at the hearing of the applications was the Plaintiff, who was identified as a "former partner" and she was a party to each application (although the Plaintiff's name was misspelled as "Ms Incic Stognak". The Defendant did not appear to dispute that the Tribunal was, indeed, referring to the Plaintiff: Affidavit, Boris Stojanovic, 30 May 2019). There was no evidence that the Defendant had been served with either of the applications and he was not referred to as a party to either application.
The Defendant lodged an "Application to Review or revoke a financial management order" with the Tribunal on 28 November 2016. In that application, he did not identify any "other people involved" as required.
On 31 March 2017, the New South Wales Civil and Administrative Tribunal, Guardianship Division, heard and dismissed an application, made by the Defendant, "to review the financial management order made on 10 October 2016 in relation to the estate" of the deceased. The Tribunal had made an order appointing the NSW Trustee and Guardian as the deceased's financial manager. At the date of that hearing, the Tribunal found that the deceased was "unable to speak to the Tribunal or to provide any views". The Tribunal had been informed by Ramila Pokharel, Director of Care at the Holy Spirit Aged Care Facility, in which the deceased was then a resident, that he "is physically very unwell, both physically and cognitively".
The Defendant gave evidence, before the Tribunal, that the deceased had "promised him that he could live in the Newtown property rent-free (or, at most, paying less than commercial rent) and has left the Newtown property to [the Defendant] in his will": Tribunal's Reasons for Decision at [4].

The nature and value of the deceased's estate

At a directions hearing on 10 December 2019, at which the Defendant was present, I directed the Plaintiff to provide an Agreed Schedule, that contained: 1. the assets and liabilities of the estate at the date of death; 2. the assets and liabilities of the estate at the date of the Schedule; 3. the estimated costs and expenses of any property that is to be sold; 4. the estimated costs of each party calculated on the ordinary and on the indemnity basis inclusive of GST; and 5. any costs of any party that have been paid, and in relation to the Defendant, whether those costs have been paid out of the estate of the deceased.
As stated, counsel for the Plaintiff did provide such a Schedule to the Court. A copy had been provided, belatedly, to the Defendant.
There was, initially a dispute that the Erskineville property was owned jointly with the deceased's former wife, and had passed to her by survivorship. The Defendant had asserted that they had held the property as tenants in common. However, a copy of the Certificate of Title, when shown to him, satisfied him that the title to the Erskineville property had been held as joint tenants and that the deceased's former wife, the Defendant's mother, as the surviving joint tenant, was entitled to be registered as the sole proprietor of that property.
The Defendant gave evidence that the value of the Erskineville property was $1,300,000 (although had it been relevant, the maximum value of the deceased's interest in it, if designated as notional estate, on the basis of that value, would have been $650,000). In the Defendant's affidavit of 30 May 2019, he put the value of the half-share at $650,000. However, in his Affidavit of 18 December 2019 (attached to Ex JS1), he asserted that the half-share was valued at $625,000. (Any issues about the Erskineville property were really irrelevant, as the Plaintiff had not made any claim that the deceased's interest, as joint tenant, should be designated as notional estate: Tcpt, 17 February 2020, p 19(09-27).) Had she done so, the deceased's former wife, of necessity, would have had to be joined as a party/Defendant to the proceedings.
The Defendant acknowledged that the Serbian property has a value of $40,000, but added that "… I am unsure about the legal procedure in obtaining the property as it would be delayed and relatively expensive …". A family provision order may be made in respect of property situated outside New South Wales when, or at any time after, the order is made, only if the deceased was, at the time of death, domiciled in New South Wales: s 64 of the Act.
There was no dispute that a practical problem would arise in making an order for provision out of the Serbian property, and presumably, for this reason, neither party sought such an order. In any event, the Defendant, and his brother, Rodney, are entitled to this property under the terms of the deceased's Will.
The Defendant annexed a copy of a bank statement of an account held in the name of the deceased for the period 20 July 2018 and 31 August 2018 that revealed a credit balance of $19,576. There was also another account with a credit balance of $207. There was a suggestion from the Defendant that the money in that account had now been expended: Tcpt, 17 February 2020, p 17(18-32). It is, ultimately, unnecessary for present purposes to determine whether this is so.
The Defendant gave evidence that the cost of memorial work on the deceased's grave was $10,800, of which $4,000 had been paid as a deposit, and that the balance of $6,800 had been paid by the deceased in November 2012. However, funeral costs of $3,525 had not been paid and the Defendant was repaying this amount by an instalment agreement entered into with the Simplicity Funerals in July 2018 and had continued to make those instalments between August 2018 and 20 March 2019. He said that he had made the payments of the instalments out of his Newstart allowance but had reimbursed himself out of the estate: Tcpt, 17 February 2020, p 21(07) - p 22(25).
The Defendant also gave evidence that for the financial year ending 30 June 2018, there were Council rates of $1,186 outstanding and that for the financial year ending 30 June 2019, there were Council rates of $1,651 outstanding. Some of these rates had been paid, although as at May 2019 some amounts were still owed. Other liabilities were said to be $179 (to Energy Australia), $148 (to Sydney Water Corporation) and $2,073 to the Supreme Court for the filing fee of the Summons for Probate (an application for the waiver of which was refused on 27 March 2019).
During the course of the hearing, the parties reached agreement that the estate of the deceased, at the date of hearing, consisted, almost entirely, of the Newtown property which had a value of $1,250,000. There was remaining cash in bank of $9,500. The total gross value of the deceased's estate at the date of hearing was, therefore, $1,259,500. (I have omitted a reference to cents and will continue to do so.)
The agreed liabilities of the estate were said to include $103,328, which was said to be the capital and interest payable to the nursing home at which the deceased had resided prior to his death. On the second day of the hearing, the amount said to be owing to Catholic Healthcare was $91,282 and an additional amount of $11,999 was payable as interest on the amount owing: Tcpt, 18 February 2020, p 88(47) - p 91(06); Ex P2.
(The Defendant asserted that he was in dispute about the amount and thought that the debt might be limited to $80,000. Since the lower estimate has not been agreed by the nursing home, I shall use the higher estimate for the purposes of determining the value of the distributable estate at the date of hearing.)
It was agreed that if the Newtown property were sold, the estimated costs and expenses of sale would be $38,125. It follows that, without any deduction of the costs of these proceedings, the value of the estate out of which an order for provision could be made was $1,118,047.

The Costs of the Proceedings

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317 at 330 [54]; [2016] NSWCA 222 at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18]. I have made this statement, many times.
The Plaintiff's solicitor gave evidence that the estimated costs of the Plaintiff, calculated on the ordinary basis, of the proceedings, were $65,000. He also gave evidence that "[p]ayment of the plaintiff's legal costs is subject to a successful outcome in the proceedings".
The Plaintiff's solicitor did not disclose the terms of the conditional costs agreement, but counsel, in answer to a question from the Bench, and after taking instructions, stated, without objection, that the Plaintiff, if unsuccessful, would have to reimburse her solicitors for disbursements they had paid ($5,663): Tcpt, 17 February 2020, p 27(39) - p 28(13).
There was no suggestion that there was an uplift fee included in the estimate of the costs and disbursements provided by the Plaintiff's solicitor.
The general rule in relation to the costs of self-represented litigants has been set out by Campbell JA (Tobias and Young JJA agreeing) in Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359 at 396 [182]-[183], [185]; [2011] NSWCA 40 at [182]-[183], [185], as follows: "Costs At the hearing Ms Mirzabegian accepted that, if the appeal were to be upheld, it would be appropriate to make in favour of the Appellant an order for costs of the limited type that can be made in favour of a self represented litigant who is not a lawyer, namely for reimbursement of certain out of pocket expenses. The Appellant did not seek any more extensive costs order, or argue in favour of any particular type of costs order. After the hearing, in response to a question asked by the bench during the hearing, and a suggestion that this was 'somewhat of a test case', Ms Mirzabegian sent a note stating that she was instructed that, if the appeal were to be dismissed, the Commissioner would not seek costs against the Appellant. It is the former alternative that has become applicable. It has been held, under a previous statutory regime authorising the making of costs orders, that a litigant in person who is not a lawyer is not entitled to receive an order for costs to compensate him for time spent in preparing and conducting his case: Cachia v Hanes (1994) 179 CLR 403. However a self-represented litigant who is not a lawyer can recover an indemnity for at least some out-of-pocket expenses actually and reasonably incurred: Secretary, Department of Foreign Affairs v Boswell (No 2) (1992) 39 FCR 288; Lawrence v Nikolaidis [2003] NSWCA 129; (2003) 57 NSWLR 355 at [37]. It appears from Cachia v Hanes at 417 that those out-of-pocket expenses were ones of the type which would have been recoverable as disbursements if the Appellant had been legally represented. Thus such expenses include filing fees: Deva v University of Western Sydney [2008] NSWCA 137 at [82]. Though there are some English cases, and some previous Australian authority (including Boswell) that say that under the heading of out of pocket expenses a litigant in person can get compensation for the opportunity cost of spending time on his litigation rather than on other paying work, since Cachia v Hanes those cases have not been followed in Australia: Lawrence v Nikolaidis at [37]. ... There does not appear to be any relevant difference between the present statutory framework for costs orders, and the provisions that the High Court referred to in Cachia v Hanes. Thus the costs order should be the sort of order that the cases cited in [183] held was permissible."
Mason CJ, Brennan, Deane, Dawson and McHugh JJ had held in Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14, that the general rule means that a self-represented person is not entitled to recover compensation for time spent in preparing and conducting the case (at 412-414); that an order for costs is 'confined to money paid or liabilities incurred for professional legal services' (at 409), and that: 'costs are awarded by way of indemnity ... for professional legal costs actually incurred in the conduct of litigation' (at 410). Furthermore, that unless allowed for in the relevant legislation or rules, it is not permissible to treat, as a disbursement, any loss of earnings incurred by a litigant in presenting and conducting a case (at 417).
In Dive v Lin [2017] NSWLEC 153, Preston CJ opined at [54]: "The High Court held in Cachia v Hanes (1994) 179 CLR 403 that the costs for which rules of court provide are confined to money paid or liabilities incurred for professional legal services and do not include compensation for time spent by a litigant in person who is not a lawyer in preparing and conducting his case: at 409, 410-411, 414. However, an order for costs can include reimbursement of expenses incurred in the proceedings. A litigant in person is entitled to be reimbursed for out-of-pocket expenses incurred in and for the purposes of litigating the proceedings: see also Cachia v The Hills Shire Council (2010) 210 LGERA 191; [2010] NSWLEC 136 at [29]-[31]."
Expenses that have been found to be properly recoverable include court fees: Oscar v Traynor [2008] FamCAFC 158 at [85] (The Court); transcript costs: Oscar v Traynor at [85] (The Court); expenses for serving documents: Winter v Fleeton [2002] WASCA 73 at [23] (Wallwork J); fees for searching registers, such as an ASIC search fee: Re Sullivan and Department of Industry, Science and Technology (1998) 51 ALD 767 at 780 [45] (Senior Member Bayne); incidental expenses in relation to photocopying, postage and telephone and facsimile transmissions: Shephard v Blueberry Farms of Australia (Corindi) Ltd (2001) 162 FLR 339 at 358 [66]; [2001] FMCA 2 at [66] (Driver FM); Cary v Owners of Strata Plan No 7241 [2002] FMCA 18 at [17] (Driver FM).
Expenses which have been held not to be recoverable include travelling costs: Oscar v Traynor at [87] (The Court); Farquar v Farquar (No 2) [2008] FamCA 682 at [5]-[8] (Burr J); Cachia v Hanes at 417 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ); parking costs: HRDW v HSJL [2006] FamCA 257 at [9] (Warnick J); and meals: Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838 at [14] (Bryson J).
The parties were able to agree that, for the purposes of the hearing, the amount that should be taken into account, for the Defendant's costs, was $500: Tcpt, 17 February 2020, p 29(10-25).
It follows that if an order were made for the costs to be paid out of the deceased's estate, the net distributable estate, out of which an order for provision could be made, is about $1,052,500: Tcpt, 17 February 2020, p 30(29).

Eligible Persons

The only undisputed eligible persons are the former wife of the deceased, and their two, now adult, children. Of those, only the Defendant has given evidence.
There was evidence given by the Plaintiff's solicitor, that notice of the Plaintiff's application, and of the Court's power to disregard the interests, was served on the deceased's former wife and upon Rodney, in the manner and form prescribed by the regulations or rules of court. Whilst the notice should have been served by the Defendant, he did not do so, although he gave evidence that "I am in co-operative discussion with [Rodney] and my mother as to who may hold the most legal entitlement to [the Erskineville property] in respect of his bankruptcy and am yet to decide on the most appropriate course of action in regards to distributing the property".
The Defendant also said, without objection, from the Bar table, in answer to a question from the Bench, that he had told them about the proceedings: Tcpt, 17 February 2020, p 37(33-42).
In all the circumstances, the Court can disregard the interests of the deceased's former wife, but as Rodney is a beneficiary named in the Will of the deceased, the Court is not entitled to disregard his interests. There was evidence, however, that Rodney's relationship with the deceased was not a close one.
The Defendant gave some evidence about his own financial resources and needs. As a beneficiary, the Court cannot disregard his interests in determining the Plaintiff's claim.

Medical Records

Counsel for the Plaintiff relied upon a copy of hospital records that included a reference to the Plaintiff being described in a number of different ways. For example, in a number of the records, over a period of years, well before the death of the deceased, included in Ex P1 (the Plaintiff's Tender Bundle), "Stogank Incic" was described as the Emergency Contact or the Person to Contact; in others, she was described as the "Next of Kin"; in another, she was described as "partner" or as "Female friend/partner Stojanka visits" (Ex P1/19); she was also described as "Life Partner" (Ex P1/35). (In the last reference "Life Partner" at Ex P1/35, is shown as "sawyer stojanovic". It was assumed that when "sawyer" appeared in the medical records, it was a reference to the Plaintiff.)
In addition, there were Progress Notes, from the Catholic Healthcare Aged Care facility that contained the following passages: "Resident aged 77 years old came from Royal Prince Alfred Hospital via Ambulance with his partner …": Ex P1/41 "Nursing: Drago remains in hospital wife came and stated she wanted 1:1 care …": Ex P1/43 "Drago sent to RPA @ 1800 hrs with wife ex partner, Stoya …": Ex P1/45 "Received phone from ex partner … … As per ex partner Stoya … … Wife called him PM.": Ex P1/46 "… but resident was very agitated and aggressive, reluctant to go hospital while his partner arrived and present [unreadable]": Ex P1/49 "Visited by wife. Eating and drinking with wife. [L]aying on the bed during & after dinner. He is wandering in corridor after his wife left …": Ex P1/50 "Family in attendance : partner, son and DIL. … Certified death by Dr.Hung La, Son, wife are here on GP visit …": Ex P1/51 "Dragos [sic] wife keeps on feeding Drago with mashed strawberry, jogurt [sic] and milk even though Ive [sic] explained to her that Drago is now swallowing anymore and keeps on coughing everytime [sic] she feeds Drago. I already informed her and her son last night not to force Drago to eat because he is not alert enough to do so. Staff also kept on reminding her but keeps denying that she's feeding Drago …": Ex P1/52 "… Hospital had discussion with son, Boris and partner Stoja …": Ex P1/56 "… girl friend visited …": Ex P1/63 "… tried to contact son … and Stoja … around 20:15, nil answer, GF sawyer informed and reassurance given. … son and girlfriend both informed and reassurance given …": Ex P1/72 "… spoken to his wife about the Medicare card … … wife is visiting at time of writing …": Ex P1/75 "… visited by girl friend, this am request extra attention to the resident, some time bring the food for him form [sic] home and eat with him …": Ex P1/76 "Visited by girlfriend this am, had some food from home.": Ex P1/78 "… wife is visiting at time of writing …": Ex P1/79 … "… family Sawyer informed above, happy with staff management … … Sawyer visited and reassurance given, happy with staff information": Ex P1/71 "… Nok sawyer notified of the hospital transfer …": Ex P1/73 … "… GP at concord stated will do blood transfusion after NOK agreeing with procedure … Stoja aware …": Ex P1/81 … "Stoja, his ex partner rang early morning while the staff busy with the work. RN suggest her to call around 930. She seemed to understand": Ex P1/84 … "… NOK Stoya and son were informed during their visit. Ate the food from family this dinner. Wife left the food in the room uncover [sic] and staff throw it after.": Ex P1/86 … "… he is no longer on public guardian, ex wife soya will be the primary contact in case of emergency …": Ex P1/87 … "Visted by ex partner Stoja and friends. Stoja stated she gave the money to Drago, RN gave her money back $10 and advice [sic] her not to give him money as might lost [sic]. Informed Stoja about the skin tear unknown reason. Stoja also requested to keep her update of Drago's condition": Ex P1/96
It can be seen from the above notations that there are different descriptions of the Plaintiff. Whilst the medical records were said to be admissible under s 69 of the Evidence Act 1995 (NSW) (and the tender was not objected to), those medical records do not disclose the identity of the author, or the identity of the person who provided the description noted. In other words, it is not known whether the information was given by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact. In addition, the information that was given may have been inaccurately transcribed, may have been open to interpretation as to what was said or meant, and may not be comprehensive. It may also have involved a conclusion about the relationship of the Plaintiff and the deceased, the factual basis of which has not been disclosed. It may have also involved an impressionistic assessment, the basis of which was not disclosed.
Naturally, consideration has been given to the records relied upon by the Plaintiff, but they are only part of the mosaic of what was said to be her relationship with the deceased as a whole and as at the time of his death.

Credibility of the Witnesses

There was no dispute that the onus of satisfying the Court that she was a person with whom the deceased person was living in a de facto relationship at the time of his death, rested with the Plaintiff. Similarly, to the extent that she was permitted to rely upon other grounds of eligibility, she would have had to establish dependency and membership of the household, or that she was a person with whom the deceased person was living in a close personal relationship at the time of the deceased's death, and, in either case, factors which warrant the making of the application.
Credit findings assume a greater significance in a case such as this one. Because of the position of the parties and the witness, the Court is required to determine on the balance of probabilities, taking into account s 140(2) of the Evidence Act, which version is the more likely and plausible. It is also the case that a de facto relationship means a relationship which exists in fact and that is established by determining what the parties to the alleged relationship are doing. As well, it is important to note the words "at the time of the deceased person's death" in s 57(1)(b) of the Act.
The oral evidence about the relationship of the Plaintiff and the deceased came, primarily, from the Plaintiff. On the question whether I accept her evidence, I remember that in Thomas v Times Book Co [1966] 1 WLR 911, Plowman J (as his Lordship then was), at 916, stated: "...not only in this case is the onus of proof on the defendants, but I am enjoined by authority to approach their story with suspicion having regard to the fact that the other actor in this story, the late Dylan Thomas, is dead and cannot therefore give his own version of what took place."
(The Defendants in that case were in the position of the Plaintiff in this case, bearing the onus of proof.)
In Richardson v Armistead [2000] VSC 551, Hansen J (as his Honour then was), at [36], stated that: "In such circumstances the self interest of a claimant to give evidence favourable to his or her case is obvious ... in such a case much caution is exercised before the evidence of the claimant is accepted."
Also, I remember what Bryson AJ said in Zahra v Francica [2009] NSWSC 1206 at [1]: "In these proceedings the plaintiff makes claims against the deceased's estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson [2000] NSWCA 61 at [26]: '... in a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available.'"
Whelan J (as his Honour then was) in Webb v Ryan [2012] VSC 377 at [22], referred to the difficulties in assessing evidence in such circumstances, stating: "An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined."
Also see, Ashton v Pratt (No 2) [2012] NSWSC 3 at [18] (Brereton J).
I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liq) (No 2) (2011) 297 ALR 56 at 69 [48]; [2011] FCA 1123 at [48]: "When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2."
Whilst there is no rule that a witness is entitled, as of right, to give evidence in her, or his, native tongue through an interpreter, the Plaintiff did so in this case. I found her evidence, in cross-examination, vague. It seemed to me that she, and, perhaps, her legal advisers, believed that all that she had to do was assert that she had been in a de facto relationship. I did not find her to be an impressive, or entirely reliable, witness.
In any event, the evidence, overall, does not satisfy me that the nature of her relationship was a de facto relationship at the time of death: 1. The deceased had not asked the Plaintiff to move into his house, but, at times, she had visited him there "to be lovers as husband and wife": Tcpt, 17 February 2020, p 60(27-30); later, she said that she and the deceased had lived at his house and also at Drummoyne (her home): Tcpt, 17 February 2020, p 61(11-39); however, later she said that it was "only, sometimes, he came to my place": Tcpt, 17 February 2020, p 64(11-15); these are hardly descriptions of a de facto relationship; 2. There were no documents evidencing that the Plaintiff resided at the deceased's home at the time of his death: Tcpt, 17 February 2020, p 56(43) - p 57(20); 3. There was no objective proof that the Plaintiff had given the deceased $200, every fortnight as she asserted: Tcpt, 17 February 2020, p 57(22) - p 57(35); 4. The Plaintiff said that the deceased had given her his bank account with a balance of about $20,000 in it because that is what she wanted and "I wouldn't go to Court if he agreed": Tcpt, 17 February 2020, p 59(06-26); this evidence is somewhat inconsistent with the continuation, at the time of the deceased's death, of a de facto relationship; and 5. The Plaintiff said that she had informed Centrelink that she was living with the deceased: Tcpt, 17 February 2020, p 62(33-38), but no documents corroborating that assertion were produced; and no documentary evidence was produced by the Plaintiff to establish whether the pension that she had been receiving had been calculated at the single, or at the couple, rate.
Until the first day of the hearing, there was no other witness who gave evidence in support of the Plaintiff's case. The witness whose affidavit was affirmed two days prior to the hearing and filed the day before the hearing commenced, was Margaret Louise Gallen, who "lived in Drummoyne, near [the Plaintiff], since about 2004". She wrote that between about October 2016 to June 2018, she would drive the Plaintiff to the Holy Spirit Aged Care Facility in Croydon so that she could visit the deceased, often three or more times a week; that she observed that they would demonstrate affection towards each other, including kissing, hugging and holding hands.
When cross-examined, she accepted that "… in the initial stages there was - when he was able there was hugging and certain - but certainly when he, he - his condition deteriorated, it was, was different. But still holding hands, and still, still kissing": Tcpt, 17 February 2020, p 69(34-50).
This, in my view, does not establish the existence of a de facto relationship. That is not to say, however, that it does not have any relevance as part of the whole mosaic of the relationship.
What Ms Gallen did not say may be equally important. For example, she did not say that, from her observations, she had formed the opinion that the Plaintiff and the deceased were in a de facto relationship. Moreover, when cross-examined by the Defendant, she accepted that she had not met the deceased prior to his admission into the Holy Spirit Aged Care Facility: Tcpt, 17 February 2020, p 70(47) - p 71(23). Accordingly, the period of time before the deceased's death for her to base her evidence was relatively short.
The court, in cases involving events which occurred some period of time before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247] (Jagot J). Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to mis-state those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160 at [157] (Kenneth Martin J).
As was noted by Davies J, with whom Emmett AJA agreed, in Nominal Defendant v Cordin (2017) 79 MVR 210 at 246 [167]; [2017] NSWCA 6 at [167]: "One reason that contemporaneous statements and documents are likely to be more accurate than a recollection of events is that a statement made at the time of an event, particularly when relatively spontaneous, is likely to be more accurate than a later statement made at a time when false memories can intrude. In a minority of cases the false memories are deliberately so because of the contrivance of the maker of the statement. In the majority of cases the false memories are honestly believed either for the reasons such as those outlined by Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) or because the person recalling the events has tried to assemble recollections logically so that what happened can have some rational explanation in the person's mind. As Leggatt J noted at [17] memories are fluid and malleable, being constantly rewritten whenever they are retrieved."
The credibility of a witness and her, or his, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. [1985] 1 Lloyds Rep 1 at 57 (Robert Goff LJ) ("The Ocean Frost"). Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] (Black J).
There were no documents, under the hand of the deceased, or otherwise, produced, until the hearing, relied upon by the Plaintiff to corroborate her evidence. This was, to say the least, surprising, bearing in mind that the Defendant had, at all times, made it clear that the relationship asserted by her, was disputed. (In this regard, at the commencement of the second day of the hearing, the Court enquired of counsel for the Plaintiff whether there was any further evidence upon which he wished to rely, and counsel had answered that he had no further evidence: Tcpt, 18 February 2020, p 87(27-30).)
Whilst in Ex P1, there were references to the deceased's general practitioner, no documents were produced under subpoena, or otherwise, from the general practitioner to demonstrate, for example, that when the deceased went to see the general practitioner, the Plaintiff was usually with him. Nor were there any documents that disclosed that the Plaintiff was, herself, a patient of the general practitioner in Newtown, which she might very well have been, had she "lived with" the deceased for the period that she asserted.
It is to be noted, however, that in some of the Progress Notes from Catholic Healthcare found in Ex P1, there are instances where a person (possibly the Plaintiff) accompanied the deceased to medical appointments.
For example: "… accompanied by wife with ambulance with transport …": Ex P1/57 "… rechecked with wife and insisted for hospital … taken by ambulance to RPAH at 1600hrs with wife …": Ex P1/57 "… Attended dental apt. accompanied by his wife and PCA … wife aware …": Ex P1/75
Counsel for the Plaintiff accepted that the medical records that referred to the Plaintiff also included her address as being in Drummoyne, and not the address of the deceased's home.
I must also consider the Defendant's evidence. He gave the following evidence: 1. He had first met the Plaintiff at the deceased's house in 1999: Tcpt, 17 February 2020, p 81(38-42); 2. The deceased, prior to that time, had told him that he had "a friend" and he had been introduced to the Plaintiff, whom he saw at the deceased's home on about half of the occasions when he visited the deceased: Tcpt, 17 February 2020, p 81(47) - p 82(12); 3. The deceased had told the Defendant that he and the Plaintiff "were romantically involved" and in the first couple of years that "they were a girlfriend and boyfriend": Tcpt, 17 February 2020, p 82(32-38); 4. The deceased had never told him that the Plaintiff had "stayed over" or had "stayed overnight" at the deceased's home, and the Defendant had never bothered to inquire: Tcpt, 17 February 2020, p 82(40-50); 5. He could not recall whether the deceased had ever told him that he (the deceased) had stayed over at the Plaintiff's home in Drummoyne: Tcpt, 17 February 2020, p 83(06-07); 6. He accepted that "a couple of times" the Plaintiff had cooked a meal for him: Tcpt, 17 February 2020, p 83(40-49); or "[s]eldomly": Tcpt, 17 February 2020, p 84(18-19); and 7. He did not dispute that the Plaintiff had visited the deceased in hospital.
A document entitled "ED Discharge Referral" from the Royal Prince Alfred Hospital, prepared around the time of the deceased's admission in June 2018 (Ex P1/30), contained the following passages: "A long discussion was had with Mr Stojanovic's partner and son regarding aims of treatment and avoidance of invasive interventions that may cause suffering.": Ex P1/29 "Documented discussion with son, Boris, about limits of care … Partner, Stoja, apparently called a GP (not patient's usual GP) independently of nursing home as she was concerned about the temperature this morning … Partner is currently demanding a transfusion for Drago"
Counsel for the Plaintiff did not put to the Defendant that he had been present and was the "son" referred to in the Discharge Referral. Nor did he put to the Defendant that the Plaintiff had been present and was the "partner" referred to. Nor did he attempt to clarify who had informed the author of the Discharge Referral that the person attending was the "partner" of the deceased.
I should also again refer to the Reasons for Decision of the New South Wales Civil and Administrative Tribunal dated 10 October 2016, which formed part of the Plaintiff's evidence. The Tribunal referred to the present Plaintiff in various ways including as being the "former partner" and the "ex-girlfriend" of the deceased: see Reasons for Decision at [4], [14], [42], Appendix. The Tribunal also observed, at [4], that: "His former partner Ms Stognak [sic] would see [the deceased] on a semiregular basis."
In his closing submissions, counsel for the Plaintiff referred to those reasons and acknowledged, frankly, that the Tribunal had described the Plaintiff as the deceased's "former partner". He submitted, by way of explanation: "But as I've indicated, the plaintiff explains that and said she wasn't there and she didn't have an interpreter.": Tcpt, 18 February 2020, p 100(21-36)
This submission appeared to have been based on the explanation provided by the Plaintiff in her affidavit affirmed 4 February 2019 at par 42.

Claim for Family Provision Order

The Plaintiff makes a claim for a family provision order under Chapter 3 of the Act. The key provision is s 59. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1): s 59(1)(a). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility. There are six categories of persons by, or on whose behalf, an application may be made.
Relevantly, in this case, as has been stated, the Plaintiff relied upon s 57(1)(b) which identifies as an eligible person, a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death. I shall, first, refer to the relevant principles that apply to establish the existence of such a de facto relationship, noting that in this sub-section, the existence of that relationship does not require proof of duration of any particular length. This is not to say that in determining the question of provision, the nature and duration of the relationship will be irrelevant.
The Plaintiff's written submissions on the issue of her eligibility were as follows: "4. The Plaintiff and Drago, began an intimate relationship in approximately 1998, at around the time of his divorce from Bosa, and when the Plaintiff became a Dept. of Housing tenant at 7/42 Mort Street, Drummoyne. They were both from Serbia, spoke the same language and had much in common. 5. Stoja had been married to a man from Bosnia, named Savo, who died around 1968. They had two children, both of whom reside in Serbia. 6. Stoja began living with the deceased, Drago, at his residence at 26 Kent Street Newtown. She cooked for him, did his laundry, cleaned and performed all domestic services. When he had a triple by-pass operation she assisted him, including showering him. She assisted helped him renovate both the Newtown property, and the Erskineville property, including washing and painting walls, sanding floors and cleaning up the work site. She paid for his clothes, groceries and contributed to insurance. 7. Stoja has been recorded variously as his "partner", "emergency contact", "next of kin", and "wife", and "authorised representative" in the records of hospitals and other institutions from 21st March 2000 onwards. 8. From time to time she would return briefly to the flat at Drummoyne. 9. They lived together on a largely continuous basis until shortly before September 2016, when Drago was admitted to Royal Prince Alfred Hospital. He was diagnosed with colo-rectal cancer for which he refused treatment. He was transferred to the Holy Spirit Nursing Home, Croydon, where he remained until his death."
As discussed above, and without intending any disrespect, the Defendant was not legally trained and consequently lacked an appreciation of the matters that are required to be addressed in closing oral submissions. Nonetheless, I am satisfied that the Defendant had a sufficient understanding of the case he was required to meet as to whether or not the Plaintiff had been in a de facto relationship with the deceased at the time of his death.
In his closing oral submissions, the Defendant submitted in relation to the asserted existence of a de facto relationship (reflected at Tcpt, 18 February 2020, p 125(33) - p 126(28)): "I've proven that this is unlikely as the plaintiff did not reside with my father, therefore, if she didn't reside with my father there couldn't have been much dependency either by him for any domestic care or full personal welfare or assistance. The plaintiff's barrister stated that there is some evidence that she did live with him. I'd like to point out the main basis of this evidence of residence between the two, that the residence issue, the plaintiff may have resided with my father. He's referred to medical reports dated from November 2016 onward; that's the hospital treatment, his diagnosis of the terminal illness after his admission to the nursing home, the accommodation in the nursing home and death. In 2016 the Guardianship Trust New South Wales took full personal and financial/legal control of his affairs. They determined he had the severest form of dementia; he had complete lack of cognition of what people were saying; he had trouble understanding simple matters, exacerbating matters; a deteriorated physical condition; he weighed about 40 kilos; he was a man of 5 foot 9 height so further deteriorated as people understand. Any admissions made, records made regarding residency either in admission reports or the hospital attendance admission reports the barrister has stated weren't, weren't made by him, so I don't think they're valid as evidence as he couldn't consent and he wasn't even aware that he was stated as a partner. Further, it confirmed the fact that he didn't consent to those records, registering information as correct. All the records prior to the Guardianship, the Guardianship attainment of his legal affairs he stated admission reports and medical reports prior to that point he stated he was in control of registrable information and he stated that the plaintiff was just a friend up until 2016 when, when control was taken off him regarding registrations, therefore, that proves he never consented of being for a partner, only a friend. That fact combined with, that fact combined with the fact they never lived together, she's clearly registered separately from him. There's no evidence that ever reside. There definitely shows there's no residency. That confounds the fact there was no dependency on him for his personal welfare, continuous personal welfare or permanent personal welfare or dependency. There is the matter of the will testate where he states she did do cleaning and cooking for him. It's clearly stated in the testate that the cleaning and cooking was done for, for, for payment purposes."
The Defendant, when asked to provide his description of the relationship between the deceased, submitted (Tcpt, 18 February 2020, p 131(25-36)): "DEFENDANT: Yes, yes, a, a friendly relationship involving romance. HIS HONOUR: What was that relationship-- DEFENDANT: It was-- HIS HONOUR: --according to your-- DEFENDANT: It was of a friendly nature, involving romance. There was no, no reliance, no dependent on any personal welfare or continued, continued social support. They did see each other intermittently, maybe two or three times a week."
In conclusion, the Defendant submitted (Tcpt, 18 February 2020, p 135(39) - p 136(10)): "DEFENDANT: Just summarising just on the evidence, just on fact, not on the evidence, it's very unusual for someone not to reside at a residence for a period of, say, 17 years which is definitely confirmed or a probable 13 years, whichever you look at it, and be considered the, the de facto partner. Why, why, why wasn't she - why wasn't the plaintiff invited to move in during that period at all if, in fact, there was a reliance, was a reliance and a dependent nature between the two parties. It would be very unusual, I suppose, it would be almost unprecedented, you know, people that have been residents and have been considered married together with lack of any shared expenses, lack of assets, in fact, no registration. It's improbable that they were a de facto partner, the only reference to support of any dependency or any reliance on the father is the payment of $20,000 which I claim is for cleaning as the friend and cleaner are titled in one phrase, two verbs in one phrase showing there's a - he puts priority on the, on the definition, expression of "cleaner" and indicating the $20,000 is for that payment. On those facts I don't think there's been a ruling where a plaintiff claiming an amendment to the will or a provisional order who has never resided with the person does that, that has been awarded a de facto verdict? So on these combined, accumulative facts there's little, little claim…"
At the hearing, as also stated earlier, the Plaintiff sought to rely upon s 57(1)(e) and s 57(1)(f) as a basis for eligibility. Whilst I permitted counsel to rely upon the former, I did not permit him to rely upon s 57(1)(f) of the Act.
Nor was it until supplementary submissions were made on the second day of the hearing that counsel for the Plaintiff referred to "factors which warrant the making of the application". He wrote at par 5: "(i) She lived with him in a close and intimate and mutually supportive relationship for approximately 18 years from 1998 until July 2016, when he was admitted to hospital. (ii) The hospital records from 2000 confirm that she was recorded as "partner", "emergency contact", "next of kin", "wife", and "authorised representative", "married". (See Plaintiff's tender bundle, Ex P1, page 1- 32, 33 -97). (iii) The deceased had apparently no contact with his son Rodney, and only limited contact with his son Boris. There is no evidence that the deceased's former wife, Bosa, had any ongoing relationship with him, after their divorce in 1998. The Plaintiff was the main person in his life. (iv) If the Defendant's evidence is accepted at pages 5 and 6 of his affidavit, sworn 30 May 2019, the Plaintiff is recognised as a beneficiary, in the deceased's last will, made 28 February 2007, as the beneficiary of a specific legacy of $20,000."
It is difficult to conclude that the matters asserted in (i) and (ii) had been established on the evidence. In relation to (iii), it is difficult to see, even if the facts asserted were accurate, that they go to the question of the Plaintiff's eligibility or factors which warrant the making of the Plaintiff's application. However, the matter in (iv), is relevant to, although not determinative of, that matter.

Eligibility

As stated, the Plaintiff asserted that she was an eligible person within the meaning of that term in s 57(1)(b) of the Act. Accordingly, she had to establish to the satisfaction of the Court that she is "a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death". There is no other temporal limit in the subsection.
I have referred to counsel's submissions on the Plaintiff's eligibility. He did not, in his written submissions, deal, expressly under each heading, with the matters referred to in s 21C(2) or in s 21C(3) of the Interpretation Act 1987 (NSW), in which the term is defined as follows: (2) Meaning of "de facto relationship" For the purposes of any Act or instrument, a person is in a de facto relationship with another person if: (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family.
Section 21C(3) of the Interpretation Act, provides: (3) Determination of "relationship as a couple" In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.
It can be seen that the nine criteria referred to may be grouped into "private" ((c), (d), (e) and (f)) and "public" ((a), (b), (g), (h) and (i)) headings. None of the matters listed is of decisive significance. The criteria are inclusive but not exhaustive. They all, however, suggest a continuing course of conduct and behaviour, not an event at a fixed point of time. No matter how close the involvement in each other's emotional lives, a conclusion that people are a couple living together involves consideration of the circumstances in which they are living, including the places at which they are living. The test is not primarily locational, but it has a locational element: Dion v Rieser [2010] NSWSC 50 at [14] (Bryson AJ).
These criteria are no more than reminders, or indicators, of matters that possibly might be relevant in deciding the question whether the parties lived in a de facto relationship: Piras v Egan [2008] NSWCA 59 at [146] (Campbell JA, Giles and Tobias JJA agreeing). The last paragraph of the section makes clear that they are not to be weighed against each other and given individual weightings of importance. Ultimately, the criteria should be used to assist in determining whether the parties were in "a relationship as a couple". They should not overshadow that central concept. See also Howard v Batistich [2019] FCA 525 at [69]-[71] (Robertson J).
One might argue that the inclusion of the term "living together" would require physical cohabitation at the time of the deceased's death. The sub-section makes it clear that a common residence is not the only element of the relationship that the Court must consider, and is not necessarily an essential element to prove. To recognise that acknowledges that, sometimes, couples choose to conduct a shared life without living together. Whilst the Queensland Court of Appeal has recognised that it will be an "exceptional" case where persons who have not lived in a common residence can be considered to be "a couple living together": FO v HAF [2007] 2 Qd R 138 at 149-150 [26]; [2006] QCA 555 at [26] (Keane JA, McMurdo P and White J agreeing); KQ v HAE [2007] 2 Qd R 32 at 38 [20]; [2006] QCA 489 at [20] (The Court), there may well be circumstances where such persons still satisfy the statutory test: Yesilhat v Calokerinos [2015] NSWSC 1028 at [34]-[41] (White J).
There is nothing in s 21C of the Interpretation Act that requires a couple who are living together to share the same household full time, or to live in one house. The concept of "living together" does not import any concept of proportion of time. Section 21C(3)(b) assumes a common residence, but does not assume any length of time. Rather, it invites an examination of its nature and duration. Furthermore, because one, or both, members of the couple may also be legally married, or in another de facto relationship at the same time as they are in the subject relationship, it is feasible that the subject relationship might involve the parties living together for only part of the relationship: Moby v Schulter (2010) FLC ¶93-447 at 85,063; [2010] FamCA 748 at [140]-[141] (Mushin J). What is important is the nature of the union (as a couple) rather than how it manifests itself in quantities of joint time.
As was pointed out by Pagone J in Re Estate of Sigg (dec'd) [2009] VSC 47 at [7]: "In the case of Dow v Hoskins, Cummins J said that the determination of whether a person was living with the deceased should not be construed on narrow, formal, pedantic or merely geographical criteria, but should be considered taking into account the human reality of the personal, emotional and cultural complex. In that case his Honour took the view that he should approach the matter in that broader context. I agree with those observations and would add that it would be wrong to assume that the test of whether people are living in a genuine domestic relationship is to be judged against a model of a couple living together full-time, sharing fully domestic, financial and other responsibilities. That would place people claiming under these provisions at the very disadvantage which the provision is designed to remove. That would be so because people who are legally married live in married relationships in circumstances which vary dramatically from one couple to another, and it would be quite wrong to require that a couple seeking to invoke the provisions of s 51 [of the Administration and Probate Act 1958 (Vic), as it then was, see now s 70J] should be judged by reference to a static model which may not bear a sufficient relationship to the reality of life and the diversity of arrangements existing between legally married couples." (footnotes omitted)
In reality, as with married couples, people who are in a de facto relationship live in a diversity of arrangements.
In Ingamells v Western Australian Trustees Ltd (Supreme Court (WA), 5 March 1993, unrep), the Full Court (Malcolm CJ, Rowland and Ipp JJ) quoted at 5, with approval, the following passage from the judgment of Fitzgerald J in Lynam v Director General of Social Security (1983) 52 ALR 128 at 131: "Each element of a relationship draws its colour and significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meet the statutory test."
The circumstances listed in s 21C(3) of the Interpretation Act do not state what has been described as the "essence" of a de facto relationship, which is to be found in the phrase "as a couple". Thus, once the physical, or factual, aspects, of the relationship have been examined, whether a mental ingredient also existed should be considered. That ingredient involves some commitment, by each of the parties, to their relationship. It need not necessarily be a commitment intended to last forever, or indefinitely. Nor need it be a commitment to a long-term relationship. But it should, at least, be a mutual commitment for the foreseeable future. If two people do not "live together as a couple" they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various matters listed.
The concept of a de facto relationship was discussed by Gzell J in Ye v Fung [2006] NSWSC 243 at [64]-[65] of the judgment: "A de facto relationship requires more than adult persons living together. They must live together as a couple. When one thinks of persons as a couple, one thinks of two people in a romantic relationship. That is the first meaning given in the Macquarie Dictionary (4th ed) with reference to people as a couple. The Oxford English Dictionary in defining the word in the sense of the union of two, or a pair, gives as its first meaning with reference to two people: 'A man and woman united by love or marriage; a wedded or engaged pair.' In my view the word in the Property (Relationships) Act 1984, s 4(1)(a), in the context of the extension of relief under the Act to persons in a domestic relationship, connotes two adult unmarried persons living together, united by love, or living together in a romantic relationship. The effect of such a construction is that de facto relationships are confined to heterosexual and homosexual romantic relationships."
As Barrett J (as his Honour then was) wrote in Petersen v Gregory; Estate Glen Alfred Petersen [2007] NSWSC 8 at [11], when considering the phrase living "as a couple": "The central concept is one of personal commitment that is mutually acknowledged and of an emotional kind transcending the mere fact of the shared residential setting. It is that which causes two persons residing under the same roof to be living 'together as a couple'."
In s 21C(3)(a) of the Interpretation Act, "the relationship" referred to cannot mean "the de facto relationship". As has been written by Campbell J (as his Honour then was) in Sullman v Sullman [2002] NSWSC 169 at [194], although he was speaking of s 4(2)(a) of the Property (Relationships) Act 1984 (NSW): "The structure of section 4(2) is that one is required to take into account such of the matters listed in paragraphs (a) to (i) inclusive as might be relevant in the particular case, for the purpose of determining whether a de facto relationship exists. If 'the duration of the relationship' is a factor to be taken into account in determining whether a de facto relationship exists, that means one must be able to tell what is 'the duration of the relationship' before one has decided whether or not there is a de facto relationship. Thus 'the relationship' in section 4(2)(a) must have a different meaning to 'the de facto relationship'. It seems to me that it involves a looser notion, under which the Court should take into account the duration of what is asserted to be the relationship, though also taking into account how the other factors listed in paragraphs (b) to (i) of section 4(2) might have changed during the course of that asserted duration of relationship."
Common sense also dictates that a relationship may change, or develop, over time. Thus, its legal character at one point may not represent its character at another. (The Plaintiff took a global approach to what she said was her relationship with the deceased and she did not appear to recognise any difference between the beginning, and at the end, of what she described as a 25 year de facto relationship.)
Furthermore, it is not essential that there be entire harmony, entire fidelity, entire satisfaction with the relationship, or entire commitment; the degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints, grievances, and less than entire commitment are often found in personal relationships, including marriages, and are not inconsistent with a relationship of two parties having a relationship as a couple living together, but not married to one another.
The significance of qualifications of these kinds appears from passages in the leading judgment of Basten JA (Ipp and McColl JJA agreeing) in Robson v Quijarro [2009] NSWCA 365 at [14]-[16], and from passages which his Honour cited from Bar-Mordecai v Hillston [2004] NSWCA 65 at [120]-[124] (Mason P, Tobias JA and Davies AJA).
Thus, the determination of the existence of a de facto relationship is essentially impressionistic. Such a relationship only exists because of the factual circumstances of the parties, unlike marriage, where there is a legal status immediately created at the time of the public ceremony and registration.
Accordingly, the court is often required to assess multiple pieces of circumstantial evidence. If there are sufficient pieces of evidence, when viewed cumulatively, and with common sense and proper reasoning, which satisfy the finder of fact that the relationship is a de facto relationship then the statutory test is met: Scragg v Scott [2006] NZFLR 1076 at [64] (The Court). Ultimately, the conclusion as to the existence, or otherwise, of such a relationship will turn on an evaluative assessment of matters of objective fact.
Other cases make it clear that the term "de facto relationship" constitutes a single composite expression of a comprehensive notion or concept. It must be approached by considering the expression as a whole and not in several parts: Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 at 685 (Kearney J); Light v Anderson (Court of Appeal (NSW), Handley JA, 4 August 1992, unrep) at 4-5; Bar-Mordecai v Hillston at [86], [125] (Mason P, Tobias JA and Davies AJA); Hayes v Marquis [2008] NSWCA 10 at [73]-[74] (McColl JA, Beazley JA agreeing).
In reaching the conclusion about the existence of the relationship, the court must also be aware of the concept of the diversity of relationships that exist between couples within our society and must not be lulled into social stereotyping. Thus, although said in another context, I agree with Bender FM (as her Honour then was) in Dakin v Sansbury [2010] FMCAfam 628 at [13], that: "... the nature of the relationship cannot be determined by looking at external societal views of what constitutes a de facto relationship, nor is it determined by what the parties themselves thought their relationship to be."
Further, as stated above, this was not the only ground of eligibility in the Act that counsel for Plaintiff attempted to rely upon at the hearing. He also wanted to submit that the Plaintiff was a person who was, at any particular time, wholly or partly dependent on the deceased, and who was a member of the household of which the deceased was a member: s 57(1)(e) of the Act.
As stated, it was only at the commencement of the hearing that counsel for the Plaintiff first raised that the Plaintiff was relying on s 57(1)(e) of the Act: Tcpt, 17 February 2020, p 7(37-42). There had been no mention of this ground of eligibility in any of the Plaintiff's affidavits, or in counsel's initial written Outline of Submissions served before the hearing.
The lateness of the Plaintiff's submission was a matter of significant concern, particularly in a case such as this, where the Defendant was a litigant in person. By making such a submission only after the hearing had commenced, counsel for the Plaintiff denied the Defendant a real opportunity to properly consider the submission and, if he wished, to obtain affidavit evidence in response.
Upon my raising of these concerns with counsel for the Plaintiff, he submitted in reply, as reflected at Tcpt, 17 February 2020, p 8(34-36): "MORRISSEY: I submit I should not be constrained by a case outline. They should be able to identify other aspects at argument that emerge from the evidence."
It is true, generally speaking, that counsel will not be confined to his, or her, submissions. However, as I pointed out to counsel for the Plaintiff, different considerations may apply when the other party is a litigant in person. As a matter of procedural fairness, a party should have the opportunity of meeting the case against him or her.
It was wholly unfair to the Defendant for such a matter to be raised at the eleventh hour and after the hearing had commenced. That unfairness is compounded when the litigant in person is faced with counsel experienced in this type of litigation who ought to know that litigation by ambush is no longer permitted.
In light of my comments, and to the extent that it was necessary to do so, counsel for the Plaintiff sought leave to file supplementary written submissions addressing the additional grounds of eligibility: Tcpt, 17 February 2020, p 33(33) - p 34(04).
After counsel for the Plaintiff's application, I attempted to canvass with the Defendant the matters that had been raised. The Defendant maintained that he had given some consideration to whether the Plaintiff was wholly or partly dependent on the deceased and whether she was a member of the household of which the deceased was a member. Turning to factors which warrant the making of the application, I was not satisfied that the Defendant had considered, or properly understood, the meaning of that term as it applies to s 57(1)(e): Tcpt, 17 February 2020, p 35(35) - p 36(33).
In view of the Defendant suggesting that he could deal with the Plaintiff's reliance upon this alternative ground of eligibility, I permitted counsel for the Plaintiff to rely on s 57(1)(e). His supplementary written submissions allowed some, albeit limited, opportunity for the Defendant to respond.
However, the evidence of the Plaintiff made it clear that she was not asserting that she had been wholly or partly dependent upon the deceased, but rather that it was he who was dependent upon her: Affidavit, Stoja Indjic, 4 February 2019 at pars 30-33; Tcpt, 17 February 2020, p 57(22-35).
I have already referred to the supplementary submissions provided by counsel for the Plaintiff, entitled "Supplementary to Plaintiff's Case Outline". In addition to counsel raising matters relating to s 57(1)(e) in those submissions, to which reference has already been made, he also made a submission based on s 57(1)(f) of the Act, namely that the Plaintiff she was a person who was in a close and personal relationship with the deceased at the time of his death. The intention of counsel for the Plaintiff to rely on this additional ground: Tcpt, 18 February 2020, p 91(17-42).
No explanation was provided by counsel going to the reasons why the ground of eligibility had not previously been relied upon, or why notice had not been given to the Defendant, well prior to the hearing, of the Plaintiff's intention to do so. Whether deliberately, or by inadvertence, the Plaintiff had not based her case on that ground of eligibility when there had been more than enough opportunity to do so.
It seemed to me that a real question emerged as to whether she should be permitted to change her case to establish an alternative ground of eligibility.
It is fundamental to the due administration of justice that the substantial issues between the parties should be made clear prior to the hearing of the proceedings. In Sydney South West Area Health Service v MD (2009) 260 ALR 702 at 716 [53]-[54]; [2009] NSWCA 343, Allsop P (as his Honour then was) (Sackville AJA agreeing) commented upon what has been described as "the ambush theory of litigation". He wrote at [53]-[54]: "Thirdly, the Court of Appeal has on a number of occasions since 2001 made clear that the ambush theory of litigation is dead in this State. The same thing has been said in the Federal Court: see in particular Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243; and Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206. As I said in White and Overland [2001] FCA 1333 at [4], which was approved in terms by the Court of Appeal in Nolan at [28] 128: 'by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are … [I]f, something has been said, where it is evident, or indeed suspected, that the other side is proceeding on a basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party, through his or her representative, ensure that the other side is not proceeding on a misconception or that the other side does appreciate something that has been said. Litigation is not a game. It is a costly and stressful, though necessary, evil … [N]o one's interests are advance by litigation proceeding on assumptions which are seen or suspected to be false.' As I also said in Baulderstone at [160]: 'it cannot be emphasised too strongly that it is the responsibility of the parties, through their legal representatives, to exercise a degree of co-operation to express the issues for trial before and during trial. Such co-operation can now be taken as an essential aspect of modern civil procedure in the running of any civil litigation including [in that case] hard fought commercial cases'."
The relevant principle was repeated by Rares J in Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 2) [2010] FCA 275 at [32]. His Honour reiterated that litigation needs to be "conducted on the basis that parties cannot leave footprints in the sand and must lay their cards on the table promptly and early so that all the true issues are identified and can be fairly tried in due course". Similarly, Bergin CJ in Eq (Ward JA and Tobias AJA agreeing) said in Baffico v YMCA of Great Lakes Inc [2014] NSWCA 61 at [24]: "As this Court has said previously the days of trial by ambush are gone. The 'cards on the table' approach in litigation is not only to ensure that the real issues in dispute are litigated but it is also to assist in the just, quick and cheap disposal of the proceedings: Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80. Those epithets are of course to be understood in the context of the particular case. It is imperative that the pursuit of timeliness and cost control in the case management process does not compromise what is at the core of the judicial system - the delivery of outcomes that are just."
Putting to one side the principles to which I have referred, I am not satisfied that the facts necessary to establish this ground of eligibility had been established on the evidence that I had read. In any event, it may have been possible for the Defendant to call evidence to establish other facts. Whether it would have been possible, we shall never know as he had not been given an opportunity to do so.
In Sadiq v NSW Trustee and Guardian, I dealt with the meaning of the term "close personal relationship", at [238]-[249]. I shall not repeat what I wrote there as I am not satisfied that all of the facts to base reliance upon the ground of eligibility have been established by the Plaintiff.
Finally, the Court would need to be satisfied that the raising of this ground of eligibility could work no injustice to the Defendant. I am satisfied that the lateness of the submission in relation to s 57(1)(f) would have occasioned significant prejudice to the Defendant. The Defendant, as discussed above, was not legally trained. It would have been extremely difficult, nigh on impossible, for him to address complex factual and legal submissions (not to mention the lack of opportunity to adduce relevant evidence) without any prior notice of the intention to rely upon the ground of eligibility.
All these matters led me to the conclusion that the Court should not permit the Plaintiff to rely upon this ground. For these reasons, I did not allow counsel for the Plaintiff to rely on an additional ground of eligibility found in s 57(1)(f).

Factors which warrant the making of the application

In the case of an applicant who falls within ss 57(1)(d), (e) or (f) of the Act, the Court must next consider, and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application: s 59(1)(b) of the Act.
In requiring a person who falls within one, or other, of these subsections to satisfy the court that there are such factors, the Act distinguishes between two classes of eligible person. As was written by McColl JA (Gleeson and Simpson JJA agreeing) in Yee v Yee [2017] NSWCA 305 at [111]-[112]: "Within the first category (s 57(1)(a) - (c)) are persons generally "regarded as natural objects of testamentary recognition", such as lawful and de facto spouses and children. This class is so regarded because it consists of those to whom it has been said a testator owes a moral duty of support. Those falling within the second category (s 57(1)(d) - (f)) are not generally regarded as natural objects of testamentary recognition by a deceased. Rather, they are "potentially appropriate objects of testamentary recognition, depending upon their circumstances". In order to qualify as such objects in fact, they must establish there are factors warranting their application. That is a jurisdictional question." (citations omitted)
The Act does not specify the "factors which warrant the making of the application". As Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138 at [16], "[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement".
In considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), McLelland J (as his Honour then was) said, in Re Fulop, Deceased (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241 at 252 (Priestley JA, Hope JA agreeing)) that the factors are factors which, when added to facts which render the applicant an eligible person, give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.
I have dealt with the meaning of the phrase in other cases, one of which is Doshen v Pedisich [2013] NSWSC 1507. I shall not repeat what I wrote in that case: see [69]-[81].
In Sassoon v Rose [2013] NSWCA 220 at [15], an application for leave to appeal, Meagher JA (Gleeson JA agreeing) noted: "In addressing the question whether there were factors warranting the making of her application, Macready AsJ correctly identified the relevant principles as those stated by McClelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681, approved by this Court in Churton v Christian (1988) 13 NSWLR 241 at 252 and applied in cases such as Diver v Neal [2009] NSWCA 54 at [8]. Those 'factors' are ones which, when added to the facts which render the applicant an 'eligible person' (in Ms Sassoon's case the fact that she is the former wife of the deceased), give her the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition."
In Chapple v Wilcox (2014) 87 NSWLR 646 at 648-649 [4]-[6]; [2014] NSWCA 392 at [4]-[6], Basten JA wrote: "The primary category of eligible people are spouses, including those in a de facto relationship with the deceased at the time of death and a child of the deceased. Other eligible persons (a category including the claimant) are required to satisfy the court that 'having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application': s 59(1)(b). The claimant must also satisfy the court that at the time when the court is considering the application, adequate provision for his proper maintenance, education or advancement in life has not been made by the will of the deceased: s 59(1)(c). Subsection (1)(c) assumes that some provision should have been made for the claimant by the will of the deceased; subs (1)(b) treats the primary category of eligible persons as naturally satisfying that assumption, whereas the secondary category (into which the present claimant falls) need to justify the assumption: see, in relation to relevantly identical provisions in s 9 of the Family Provision Act 1982 (NSW), Re Fulop Deceased; Fulop v Public Trustee (1987) 8 NSWLR 679 at 681 (McLelland J). That approach obtains support from the provisions of Ch 4 of the Succession Act dealing with intestacy. Those primarily entitled to a distribution from the estate of an intestate are a surviving spouse (ss 110-113) and the deceased's children (s 127). A grandchild has an entitlement, but only a presumptive share of a child of the intestate who predeceased his or her parent: s 127(4)."
Most recently, in Lodin v Lodin (2017) 16 ASTLR 576 at 598-599 [106]-[108], 600 [112]-[113]; [2017] NSWCA 327, Sackville AJA (Basten and White JJA agreeing), wrote at [106]-[108], [112]-[113]: "In Re Fulop, McLelland J construed s 9(1) of the FP Act, the forerunner to s 59(1)(b) of the Succession Act. His Honour stated the following propositions: (i) The question posed by s 9(1) of the FP Act cannot be resolved until all admissible evidence relevant to the issue of whether there are factors warranting the application has been tendered. Despite s 9(1) using language that apparently contemplates determining the question as a preliminary issue, ordinarily it is impracticable to isolate the evidence bearing on that issue from other evidence in the case. (ii) Section 9(1) is premised on a distinction between "factors which warrant the making of the application" and the circumstances which justify the making of the family provision order. Otherwise the subsection would be pointless. This means that in a particular case an applicant might establish that there are factors warranting the application, yet the court might decline to make a family provision order in the applicant's favour. (iii) The legislation also requires a distinction to be drawn between "eligible applicants" who do not have to satisfy s 9(1) (a spouse, de facto partner or child of the deceased) and those who do (such as a former spouse or grandchild). The difference is that the former are generally regarded as natural objects of testamentary recognition by a deceased, while the latter are not generally so regarded. Accordingly, the "factors" referred to in s 9(1) of the FP Act are those that give an eligible person in the second category "the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased". These propositions have been accepted in subsequent cases arising under the FP Act, including cases in which a former spouse of the deceased claimed a family provision order. They have also been accepted as applicable to a claim by a former spouse under the Succession Act. Thus in Sassoon v Rose, Meagher JA said that the trial Judge in that case correctly identified the principles stated in Re Fulop as the basis for determining whether there were factors warranting the making of the application." The Succession Act In view of the authorities it is not surprising that the parties in the present case proceeded on the basis that the principles stated in Re Fulop in relation to s 9(1) of the FP Act apply equally to s 59(1)(b) of the Succession Act, despite the differences in statutory language. Nonetheless some observations should be made about the construction of s 59(1)(b) and s 60 of the Succession Act. … When ss 59(1)(b) and 60 of the Succession Act are read together they should be understood to allow the Court to have regard to the matters in s 60(2) when determining whether there are factors that warrant the making of the application. The reference in s 59(1)(b) to "all the circumstances of the case (whether past or present)" is apt to enable the Court to take into account, for the purposes of the determination under s 59(1)(b), any of the matters identified in s 60(2), provided that they are relevant to the issue to be determined. What is relevant in a particular case will depend on the particular circumstances. Section 60(1)(b) of the Succession Act provides that the Court may have regard to the matters set out in s 60(2) for the purpose of determining whether to make a family provision order and the nature of any such order. However, this does not mean that the issues for determination raised by s 59(1)(b) and s 59(1)(c) of the Succession Act are identical. Section 59(1)(b) requires the Court to consider whether certain "eligible persons", such as a former spouse or a grandchild of the deceased, have shown that there are factors warranting the making of the application. Only if the person satisfies that requirement can the Court make a family provision order in accordance with the criteria laid down by s 59(1)(c). As McLelland J in Re Fulop remarked of s 9(1) of the FP Act, there would be no point in requiring an eligible person to satisfy s 59(1)(b) of the Succession Act if it is co-extensive with s 59(1)(c)." (citations omitted)
Although Sackville AJA went on to deal with the claim of an applicant who was a former spouse of the deceased, the following propositions that he stated, at [126]-[129], apply generally: 1. Care must be taken not to impose rigid constraints on the circumstances that might constitute factors warranting the making of an application for family provision order from the estate of the deceased. 2. What an applicant must show cannot be defined with precision since all the circumstances have to be taken into account. Some cases may be comparatively straightforward; others may not be. 3. A significant matter is likely to be the nature of the relationship between the applicant and the deceased. In particular, it may be very important to determine whether there were (or are) features of that relationship that can be said to create a social, domestic or moral obligation on the deceased to make testamentary provision for the applicant.
Finally, I should note that in Page v Page (2017) 16 ASTLR 331 at 340 [38]; [2017] NSWCA 141, Leeming JA noted, at [38], that: "An order for provision may only be made if (a) as a former member of the same household, the appellant establishes that he was 'at any particular time, wholly or partly dependent upon the deceased' and (b) that 'having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application': s 57(1)(e)(i) and s 59(1)(b). These are both 'jurisdictional' questions, in the sense that the application must be dismissed unless both questions are answered favourably to the claimant. However, they are different from one another. They are also different from the further question which arises under s 59(1)(c), which must also be answered favourably before an order for family provision is made."

Adequacy of Provision

Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of the applicant.
In Grey v Harrison [1997] 2 VR 359 at 366-367, Callaway JA (Tadgell and Charles JJA agreeing) observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: Singer v Berghouse (1994) 181 CLR 201 at 210-211 (Mason CJ, Deane and McHugh JJ); [1994] HCA 40; White v Barron (1980) 144 CLR 431 at 434-435 (Barwick CJ, albeit in dissent in the result), 443 (Mason J); [1980] HCA 14.
Basten JA, in Foley v Ellis [2008] NSWCA 288 at [3], commented that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254 at [126], White J (as his Honour then was) said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "'an evaluative determination of a discretionary nature, not susceptible of complete exposition' and one which is 'inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific'": Szypica v O'Beirne [2013] NSWSC 297 at [40], citing Manuel v Lane [2013] NSWCA 61 at [9] (Emmett JA, Meagher and Ward JJA agreeing).
Under s 59(1)(c) of the Act, the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application.

Determination of Eligibility

I shall deal first with the Plaintiff's reliance upon s 57(1)(b).
In many cases, it is relatively easy to conclude that two adult persons were in a de facto relationship because the facts make it obvious that there has been the requisite merging of lives, such as where they are living in the same accommodation, are sharing sexual conduct, or where they proclaim that they are a de facto couple.
In other cases, such as this one, it is more difficult to determine whether the relationship should be classified as a de facto relationship if the persons alleged to be in such a relationship, live in an unconventional manner, or when the relationship finds expression in a different type of domestic arrangement. The cases reveal the plethora of the different types of relationships and the different levels of domestic and emotional arrangements between adults. However, even in what might be regarded as a non-traditional relationship, the court is required to evaluate the evidence to determine whether the legal threshold is met and that is determined by considering the facts in the light of the Act. In this regard, a common sense objective judgement should be applied evaluating all of the circumstances.
It is even more difficult for the court to determine the nature of the relationship, where one of the parties to the alleged relationship is dead, and much depends upon acceptance of substantially uncorroborated evidence of the other.
The concept of a de facto relationship is complex and diverse. Importantly, such a relationship can, and should, be distinguished from the relationship of two people, who live apart, but who have a sexual relationship, and who sleep over at one another's house; and also from the relationship of two people, who share a house, but who do not have a romantic commitment to each other and who have other sexual partners. The fact that one provides the other, on occasions, with financial, or other, assistance, such as accommodation, to alleviate hardship does not mean that they are in a de facto relationship. In this way, a de facto relationship is different from friendship, or courtship, which has not matured into a mutual commitment to a shared life. It is also different from simple companionship.
Drawing all of the facts together, I am of the view that the relationship between the Plaintiff and the deceased, whilst romantic, and perhaps, even loving, could not be described as a de facto relationship at the time of the deceased's death. Many of the criteria identified in s 21C(3) of the Interpretation Act were not in existence at that time, and, indeed, had not been a feature of the parties' relationship for a period of time before death. In this regard, I accept the Defendant's evidence.
Having made a detailed assessment of the sufficiency, and quality, of the evidence, I am not persuaded that the Plaintiff and the deceased had a relationship as a couple living together, at the time of the deceased's death (as asserted by her). Furthermore, some aspects of the evidence are less than wholly satisfactory. The Plaintiff's failure to produce any documents going to her having informed Centrelink as she asserted that she had (Tcpt, 17 February 2020, p 62(33) - p 62(38)) is telling when coupled with the fact that she did not produce any pension statements for the period of the alleged de facto relationship, to show that she had been receiving a pension based on a "couple" rate rather than at the "single" rate. This is a matter that was specifically raised by the Court with counsel for the Plaintiff on the first day of the hearing: Tcpt, 17 February 2020, p 63(45) - p 64(04).
By way of additional example, her failure to produce any other documents, such as cards or letters, or evidence of telephone, or any other, messages, between them, and the failure to produce any documents showing the purchase of any joint property for one home or the other, lays bare the absence of what might be thought to be some of the usual accompaniments of a de facto relationship. I have earlier referred to the evidence concerning the deceased's bank account.
I have not forgotten the evidence of Ms Gallen. The fact that the Plaintiff visited the deceased whilst he was a patient in hospital, even if it occurred regularly, does not elevate the Plaintiff's relationship with the deceased to that of a de facto relationship.
At the end of the case, there is little more than the Plaintiff's own evidence on the existence of a de facto relationship. However, the cumulative effect of all of the evidence does not establish, to my satisfaction, that such a relationship existed at the time of the deceased's death.
Whilst there can be no doubt that the Plaintiff and the deceased were not married to one another, or related by family, I am unable to find that the Plaintiff was living with the deceased, or that they were "living together as a couple" at the time of his death. Accordingly, I am unable to find that she is an eligible person under s 57(1)(b) of the Act.
The rejection of the Plaintiff's claim as the deceased's de facto partner leads me to next consider the question whether the Plaintiff was a member of the household of which the deceased was a member, and whether she was wholly or partly dependent upon him. If she establishes eligibility on this basis, and then factors warranting the making of her application, that will entitle her to make the claim for a family provision order (although the findings will not, of themselves, guarantee that the claim will succeed).
Again, I am not satisfied that the Plaintiff and the deceased were members of the same household, even though she visited the deceased at his home at various times, and may have stayed there, with him on occasions.
It is even clearer that she has not established dependency in whole, or in part, upon the deceased at any time. The submission put by counsel that she was "partly dependent on him for accommodation": Tcpt, 18 February 2020, p 98(04-05), is not supported by evidence that she had her own accommodation provided to her by the Department of Communities and Justice where she lived (as disclosed in the Hospital records).
Nor is there any evidence of "emotional dependency". Establishing that they were in a close, or in a romantic, or sexual, relationship, does not go far enough, on its own, to demonstrate that type of dependency.
Accordingly, the Plaintiff has not established that she is an eligible person within the meaning of that term in the Act. This means that it is unnecessary to address the other aspects of the case. It follows that her claim must be dismissed.
The Court orders that the Plaintiff's Summons be dismissed with costs.

Amendments 30 April 2020 - Catchwords - amended 'litigants' to 'litigant'. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 April 2020

Family Provision Act 1982(NSW)

(2010) 210 LGERA 191

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