Jane McDermott v Southern New South Wales Local Health District and Hydro Limited

Supreme Court of NSW|2013-05-07|Before: Kearns J, Mr J

The facts 1The facts set out in these reasons may be taken as established for the purpose of the application before me, though not necessarily for the principal proceedings. 2From 1976 until the early 1980s, Ian McDermott worked at Cooma Hospital. The first defendant is responsible for its liabilities. Over the same period, Ian McDermott also worked at various houses owned and occupied by the second defendant. In both these employments, he was exposed to asbestos dust and fibre. It adhered to his person and clothing which he wore home each day. 3Adam McDermott was Ian McDermott's son. He was born on 1 October 1978. He lived at home with his family in the period mentioned. In that period, he contacted his father on his father's return from work each day. That exposed him to asbestos dust and fibre. He was also otherwise exposed to asbestos dust and fibre in the house including when his father's clothes were shaken and washed. 4As a result of this exposure to asbestos, Adam McDermott contracted mesothelioma. His exposure was a result of the negligence of both defendants. 5For his injury, Adam McDermott commenced proceedings in the Tribunal on 19 January 2012. Evidence was taken from him as a matter of urgency 23 January 2012 at St George Hospital. He died on 9 February 2012. 6Adam McDermott had left a Will dated 2 February 2012. He appointed his sister Jane McDermott as executor and trustee. 7On 26 September 2012, a notice of motion was filed seeking the following orders: 1. That pursuant to Regulation 6.30(2) of the Uniform Civil Procedure Rules 2005 and Regulation 19(2)(c) of the Dust Diseases Tribunal Regulation 2007, Jane McDermott be appointed the Legal Personal Representative of the Estate of the Adam McDermott in current Dust Diseases Tribunal of NSW proceedings case no. 14 of 2012. 2. That the name Adam McDermott be deleted in Dust Diseases Tribunal of NSW proceedings case number 14 of 2012 and the name Jane McDermott (as Legal Personal Representative of the Estate of the Adam McDermott be substituted in the Amended Statement of Claim and all subsequent documents. 3. That pursuant to Regulations 19(2)(c) and (d) of the Dust Diseases Tribunal Regulation 2007 leave be granted to file an Amended Statement of Claim in accordance with the Amended Statement of Claim annexed hereto and marked with the letter "A". 8The Tribunal made those orders by consent on 8 October 2012.

The application 9The matter has now come before me on an application by the first defendant to strike out or stay the proceedings. The second defendant did not take part in this application, but as I understand it , it will abide the outcome. 10This application is based on the fact that probate of the Will has not been obtained. Probate has not been sought. This is because the debts of the Estate exceed the assets. It is the intention to seek probate if these proceedings are resolved in favour of the Estate.

The defendant's argument 11The first defendant's argument may be summarised as follows. 12Section 12B of the Dust Diseases Tribunal Act 1989 provides for the survival of general damages and damages for loss of expectation of life. By its terms, it allows the estate to recover. The amended statement of claim in its title describes the plaintiff as "Jane McDermott (as legal personal representative of the Estate of Adam McDermott)". In paragraph 1, the plaintiff sues as executor is respect of the estate action and a compensation to relatives action. 13The argument then turns of s 74 of the Probate and Administration Act 1898. That provision enables the Supreme Court to appoint a person as administrator of an estate if a named executor in a will is not willing to take probate. The argument must proceed on the basis that the plaintiff is not willing to take probate, otherwise the section can have no application. However, at one point in the defendant's submission, there was a comment about the plaintiff's willingness to obtain probate. No detailed argument was addressed as to whether, in the circumstances, being that probate would be sought if the proceedings were resolved satisfactorily, that meant that the plaintiff was willing or not willing to obtain probate. I do not think it matters. The section does not provide a compulsory process. It provides a course of action that may be pursued if need be. 14Mr Sharpe, who appeared for the first defendant, referred me to three cases on s 74. They were Uniting Church v Millane [2002] NSWSC 1070, Kepreotis Estate - Application of Kepreotis & Anor [2010] NSWSC 1353 and Alan Yasbek V Ghosn Yasbek & Anor (No. 2) [2012] NSWSC 783. I do not think these cases assist. 15The argument then turns to the compensation to relatives claim. It proceeds to s4 of the Compensation to Relatives Act 1897 which requires the action to be brought by and in the name of "the executor or administrator" of the deceased. The submission is then made that in these circumstances, UCPR r6.30 and r7.10, on which the plaintiff relies, do not, on their proper construction, apply.

The rules 16Rule 6.30 provides: (1) Proceedings do not abate as a result of a party's death or bankruptcy if a cause of action in the proceedings survives. (2) If a cause of action survives, and the interest or liability of a party to any proceedings passes from the party to some other person, the court may make such orders as it thinks fit for the joinder, removal or re-arrangement of parties. (3) ... 17Rule 7.10 provides: (1) This rule applies to any proceedings in which it appears to the court: (a) that a deceased person's estate has an interest in the proceedings, but is not represented in the proceedings, or (b) that the executors or administrators of a deceased person's estate have an interest in the proceedings that is adverse to the interests of the estate. (2) The court: (a) may order that the proceedings continue in the absence of a representative of the deceased person's estate, or (b) may appoint a representative of the deceased person's estate for the purposes of the proceedings, but only with the consent of the person to be appointed. (3) Any order under this rule, and any judgment or order subsequently entered or made in the proceedings, binds the deceased person's estate to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceedings. (4) ...

Compensation to relatives claim 18The defendant's argument on this must fail. 19Section 4 of the Compensation to Relatives Act 1897 requires the action to be brought by and in the name of the "executor" or "administrator". Both those terms are defined. 20"Administrator" is defined in s 7 as follows: In this Act "administrator" means administrator within the meaning of the Probate and Administration Act 1898 and includes the NSW Trustee and Guardian acting as collector of an estate under an order to collect. 21That leads to the Probate and Administration Act 1898 where "administrator" is defined as "the NSW Trustee and any other person to whom administration as hereinafter defined is granted". The plaintiff is not an administrator within the meaning of s 4. 22"Executor" is defined in s 7 as follows: In this Act "executor" means the executor to whom probate has been granted and includes an executor by right of representation. Counsel could not assist on what was an "executor by right of representation", but it does not matter. 23The plaintiff is not an executor to whom probate has been granted. Either she is an executor by right of representation or she is not. If she is, she is entitled to bring these proceedings. If she is not, then s6B of the Compensation to Relatives Act 1897 applies. It provides: (1) Where there is no executor or administrator of the person deceased, or where the person's executor or administrator does not bring an action under this Act within six months after the death of the person deceased, the person or any one or more of the persons for whose benefit the action might be brought by such an executor or administrator may bring the action. The plaintiff is a person for whose benefit the action may be brought as she is the sister of Adam McDermott. 24If it be required that the statement of claim state that the plaintiff is bringing the claim as sister, that is something capable of being cured by amendment. It is not something that warrants the striking out of the proceedings or staying the proceedings.

Estate claim 25Mr McIntyre SC, with Mr Tzouganatos, appeared for the plaintiff and I think his fundamental submission is correct. It is that probate and administration are concerned with the administration of estates. What is happening here does not involve the administration of the Estate. Here, there exists a chose in action. It may be entirely worthless. It may turn out to be valuable in which event the Estate will then have an asset to be administered and probate will be sought. The process of determining that does not involve administration of the Estate. 26Lack of probate cannot provide a blanket prohibition against the continuation of legal proceedings. The rules accommodate situations where cases may proceed in the absence of a grant of probate. 27The outcome of the defendant's application depends on the construction of the relevant rules. 28The first rule to consider is r6.30. By this rule, the proceedings do not abate. It seems to me that subrule 2 applies because the cause of action survives and the interest of Adam McDermott has passed to another person. That is sufficient to invoke the court's power and discretion to make such an order as it thinks fit for the "joinder, removal or re-arrangement of parties". 29In my view, the Tribunal had power to make the order made, by consent, on 8 October 2012. 30The question then is whether the Tribunal should have exercised its discretion in making the order. There is nothing in the rule to fetter the exercise of the discretion in the manner sought by the defendant's submissions. Further, the exercise of that discretion should not be reconsidered in circumstances where all parties agreed to the making of the order. 31These reasons make it unnecessary to consider UCPR Part 7, r.7.10.

Orders 32(a) I dismiss the notice of motion of the first defendant filed 21 March 2013. (b) The first defendant is to pay the plaintiff's costs of the motion. 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: 19 July 2013

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