Logan & Anor v Camm & Whitson

[1] The present application has been brought by Avrill Petra Mabel Camm ("Mrs Camm") seeking directions in relation to a family provision application filed on 11 December 2007. The family provision application filed in December 2007 was brought by Janice Lesley Logan ("the first applicant").

[2] The first applicant is the daughter of the deceased Leslie Robert Camm and Mrs Camm. Mrs Camm is the deceased's wife. She is a woman in her 80's.

[4] By his will dated 23 April 2003, the deceased appointed Mrs Camm and his accountant, Neil John Whitson ("Mr Whitson") as executors and trustees of the will.

[5] Under the will the first applicant received the deceased's interest in a home unit No. B103 at 32 Swan Road, Taringa, together with its contents and all the deceased's shareholdings or units in public or listed companies or trusts. Mr Whitson gives evidence that at the time of the preparation of accounts, the shares were worth a little less than $50,000.

[6] The balance of the estate was to be held in trust. Mrs Camm was to receive the income from the residual estate for life and the trustees, Mrs Camm and Mr Whitson, were empowered to apply any part of the capital for Mrs Camm's benefit during her lifetime.

[7] On Mrs Camm's death, the estate was to be divided amongst the three children of the relationship including the first applicant.

[9] Pursuant to s 41(8) of the Succession Act 1981 (Qld), an application for family provision can only be brought as of right within nine months of the date of death.

[10] The period for bringing an application for family provision without the necessity for the court's leave being obtained expired on 14 December 2007.

[11] The application brought by the first applicant was thus within time.

[12] The application filed by the first applicant was not served on Mrs Camm. On 26 February 2008 the first applicant filed a notice of discontinuance under the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR").

[13] Mrs Camm wishes to claim under the family maintenance provisions of the Succession Act and sought directions for the progress of the first applicant's application in reliance on s 41(6) of the Succession Act which provides as follows:

"Where an application has been filed on behalf of any person it may be treated by the court as, and, so far as regards the question of limitation, shall be deemed to be, an application on behalf of all persons who might apply."

[14] For the purposes of her proposed application, Mrs Camm has renounced her duties as executrix and trustee.

[15] The short point argued before me was whether or not this provision entitles Mrs Camm to take advantage of the first applicant's application notwithstanding its discontinuance so as to avoid the necessity of seeking leave for the bringing of her own proceedings.

[16] The applicant has not applied for leave to commence proceedings under Part 4 of the Succession Act.

[17] Under r 304 of the UCPR an applicant is entitled to discontinue a proceeding commenced by application at any time before the first affidavit in reply is received from a respondent.

[18] Rule 304 is subject to r 303 which provides that a party who represents another party in a proceeding may discontinue or withdraw only with the court's leave.

[19] Rule 304(3) provides that if there is more than one applicant an applicant may only discontinue with the court's leave or the consent of the other parties.

[20] The primary submission advanced on behalf of Mrs Camm is that s 41(6) of the Succession Act preserves the limitation period upon the filing of the application. In those circumstances it was submitted that the subsequent discontinuance of that application has no effect in relation to other persons eligible to apply.

[21] On the other hand, counsel for the trustees submitted that upon the notice of discontinuance being filed the application ceased to have effect for any purpose and could not be taken advantage of by Mrs Camm.

[22] Section 41(6) of the Succession Act is invoked by the filing of the application. Its effect, however, is not to make the applicant the representative of other parties who might be eligible to apply. The applicant has no responsibility or duty to protect the interests of other potential applicants.

[23] A better way of looking at the position is to regard the applicant as having filed the application on her own behalf but in circumstances where s 41(6) then makes the proceedings available to any other eligible person who might wish to be joined as an applicant.

[24] The first question that arises is whether in the circumstances that exist here, the notice of discontinuance filed by the first applicant was irregular. Such irregularity would arise if, as a result of s 41(6), the first applicant was deemed not to be the only applicant. In that case she could only discontinue the proceedings by leave.

[25] I do not think the s 41(6) of the Succession Act has the effect of making the first applicant only one of a number of notional applicants. I see an analogy with rules 69 and 74 of the UCPR which deem added parties to have been joined at the time of the filing of the originating process for the purposes of any limitation period notwithstanding that they in fact only become parties to the proceedings on joinder.

[26] One of the requirements for joinder is that there be an existing proceeding. I consider the effect of s 41(6) to be to allow any person to join the proceedings as of right as long as the proceedings remain on foot. If another party joins during the continuance of the proceedings that party is deemed for limitation purposes to have been a party from the commencement. If there is no existing proceeding there is nothing with which to join.

[27] This interpretation of s 41(6) and the UCPR does not assist Mrs Camm. The consequence of it is that the discontinuance of the application was not irregular. Thus, there is no proceeding in which Mrs Camm can elect to be an applicant.

[28] Had the discontinuance been irregular because the first applicant was only one of a number of applicants, Mrs Camm would have been entitled to have the action reinstated as of right. In this respect I can see no difference between an irregularly entered default judgment affecting rights and an irregular termination of an action affecting rights. In either case the Court has an inherent power to set aside the termination and reinstate the proceeding: see Champion v Fay [1983] 2 Qd R 416 for the position regarding a default judgment.

[29] This raises the issue of whether the court has power to reinstate the proceedings terminated by the filing of a notice of discontinuance under the UCPR.

[30] The fact of discontinuance by the only identified applicant would not invoke the finality rule referred to by the High Court in Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 and on which the respondent executor relied.

[31] A number of exceptions to the rule were subsequently identified by the High Court in DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 where the High Court discussed the power of a superior court to reopen or set aside its decision after regular entry of judgment in the context of the Full Court of the Family Court.

[32] Although termination of an action by notice of discontinuance does not fall within any of the expressly identified exceptions to the finality rule, it seems that the rule will only be applied where there has been a judgment on the merits or, at least, in some cases, a deliberate termination of the proceedings by an order of the court. I do not doubt that the Supreme Court within its inherent jurisdiction has the power to reinstate a proceeding brought to an end by the operation of the UCPR on the filing of a notice of discontinuance.

[33] The dictum of Gaudron J in FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 at 288 is instructive in this context. After setting out passages from the judgment of Barwick CJ in Bailey v Marinoff (supra), Justice Gaudron, at 288, said the following:

"The passages above quoted invite two comments. First, in so far as Barwick C.J. considered that a power to reinstate a proceeding would not promote the administration of law or justice, a distinction should, I think, be made between orders operating by way of final determination of the matters in issue and orders dismissing proceedings but leaving it open to a party to commence fresh proceedings. ...

Where an order for dismissal does no more than effect a situation in which fresh proceedings may be brought (involving additional expense and duplication of court time if, as here, there has been a hearing as to the issues in dispute or some of them) then it seems to me that the administration of law and justice may be well served by a power to reinstate proceedings."

[34] It is clear from r 310 of the UCPR that the discontinuance of a proceeding cannot be raised by way of objection to further proceedings on the same or substantially the same grounds.

[35] If proceedings terminated by a court order can in appropriate circumstances be reinstated, it follows that where proceedings have been unilaterally terminated by one party without the benefit of a court order the power to reinstate must exist in an appropriate case.

[36] Thus, for the reasons I have indicated, I am satisfied that the court has a discretion to reinstate the proceedings on behalf of one of the notional applicants on whose behalf the proceedings were deemed to have been brought; in this case, Mrs Camm.

[37] The question then arises as to what factors would be taken into account by the court in the exercise of the discretion to reinstate.

[38] In my view, the relevant circumstances would in most cases parallel those which the court would take into account in determining whether or not to give leave to commence proceedings outside the statutory period. Generally speaking this requires an explanation for the delay in the adoption of an active role in the proceedings, a consideration of the prejudice to other parties by reason of any delay and the demonstration of at least an arguable case for further provision.

[39] An order reinstating the proceedings here should also include substituting Mrs Camm for the first applicant in the proceedings to avoid the first applicant being exposed to further risks in the litigation.

[40] In this particular case, for apparently forensic reasons, the second applicant deliberately refrained from addressing the discretionary factors that might have been relevant had she made an application for leave to commence proceedings out of time, preferring instead to rely solely upon an asserted right to adopt the discontinued proceedings.

[41] The delay may be explained by the fact that Mrs Camm did not know about the application before it was discontinued and thereafter the matter was held up by the usual assertions and counter assertions as to the respective rights of the parties.

[42] There appears to be no viable argument concerning prejudice. The will requires the estate to be held for the benefit of Mrs Camm apart from the specific gifts to the first applicant. The residual estate has thus not been administered in any material way and no one other than Mrs Camm has any present entitlement to any part of it.

[43] However, this is a case where, having regard to the terms of the will and the affidavit filed by the executor, Mr Whitson, it is not necessarily obvious that provision was not made for Mrs Camm from the estate for her proper maintenance and support. The evidence discloses that the estate is a reasonably significant one. Apart from the gifts to the first applicant, the balance of the estate is to be held in trust, with Mrs Camm and Mr Whitson appointed as trustees. Mrs Camm is entitled to the whole of the income of the trust for life. The trustees are also empowered to apply any part of the capital for her benefit during that period.

[44] As I have mentioned, Mrs Camm is a woman in her eighties. Upon the death of her husband, she took by survivorship his interest in the matrimonial home and in a term deposit of almost $1,000,000. On the present material, it does not appear that Mrs Camm is in need of support and, as things stand, that in itself is a reason for refusing either to reinstate the discontinued proceedings or refusing leave to bring a fresh application should such an application be brought: see Hills v Chalk [2008] QCA 159. That conclusion may change, however, if Mrs Camm presents her assessment of her situation to the Court by way of affidavit.

[45] Rather than dismissing the present application for directions I am prepared to give Mrs Camm the opportunity to put material before the court with a view to invoking a favourable exercise of discretion in relation to the reinstatement of the proceedings or to seek leave to commence fresh proceedings. I will, if requested, order that the application be adjourned to a date to be fixed so that Mrs Camm can address the relevant discretionary factors. This seems to me to involve some savings for the estate in not having to duplicate costs already incurred.