Supreme Court of Tasmania|1996-03-29|Before: Zeeman J

Mark Anthony West (An Infant) By His Next Friend Jane Lillianne West v Arthur John West and Maxwell James West [1996] TASSC 17; (1996) 5 Tas R 392 (29 March 1996)

MARK ANTHONY WEST (AN INFANT) by his next friend JANE LILLIANNE WEST v. ARTHUR

Succession - Family provision and maintenance - Practice - Procedure orders and other matters - In relation to application - Application to treat the application as being made on behalf of all persons entitled to apply - Nature of the discretion. Testator's Family Maintenance Act 1912 (Tas), ss3(4) and 11. In re Tiller (deceased); Gum v Tiller (1963) SASR 117, referred to.

ZEEMAN J Brian Wayne West ("the testator") died on 19 March 1995. By his last will and testament dated 8 February 1995 the testator appointed his brothers Arthur John West and Maxwell James West the executors and trustees thereof and gave, devised and bequeathed the whole of his estate unto his trustees upon trust for sale. Out of the proceeds of sale, the trustees were directed to pay a number of specific bequests and to hold the net residue upon trust for such of the children of the testator, Justin Brian West, Melissa June West and Mark Anthony Kenneth West, as should survive him and attain the age of thirty-three years and, if more than one, in equal shares. All those children survived the testator and are still living. The will makes further provision in the event that none of the children attains the prescribed age. The will was duly proved by the executors named therein and probate thereof was granted to them by the Court on 22 September 1995.

2. On 19 December 1995 one of the children of the testator, Mark West, filed an originating application seeking an order that further provision be made for him out of the estate of the testator pursuant to the provisions of the Testator's Family Maintenance Act 1912 ("the Act"). The various persons who might be affected by any order making further provision, including the other children of the testator, have been served with the originating application. Melissa June West ("the applicant") entered an appearance on 6 February 1996. I have no evidence as to when she was served with the originating application.

3. I am required to determine the interlocutory application made by the applicant by which she seeks orders in the following terms:

"1 That the originating application filed in this matter on

the 19th day of December, 1995 by Mark Anthony West (an

infant) by his next friend Jane Lillianne West shall be

regarded as an application on behalf of all persons who are

entitled under the Testators Family Maintenance Act 1912 to

make such an application.

2 That the originating application shall for the purpose of

Section 11 be treated as an application made by all of those

persons."

4. Although the applicant is not the only person who is entitled to make, but has not made, an application under the Act, no other such person supports the making of the orders sought by the applicant. It is opposed by the parties to the originating application. In those circumstances counsel for the applicant indicated that his client's application ought to be taken as being limited to seeking such orders as are necessary to enable her to have the benefit of the originating application, unaffected by any limitation provision. It may be doubted whether the Act, s3(4) authorises the making of an order which is otherwise than for the benefit of all possible claimants. It is not a matter as to which it is necessary to express any concluded view because the application must fail in any event.

5. The application is made pursuant to the provisions of the Act, s3(4). That subsection provides as follows:

"Where an application under subsection (1) of this section

is made by or on behalf of any person, the Court or a judge

may order that it shall be regarded as an application on

behalf of all persons who are entitled under this Act to

make such an application, and if the Court or a judge so

orders, the application shall, for the purposes of section

eleven, be treated as an application made by all of those

persons."

Regard must also be had to s11. Relevantly, that section provides as follows:

"11 (1) Except as provided by subsection (2) of this

section, the Court or judge shall have no jurisdiction to

hear any application, or to make any order under this Act,

unless the summons hereinbefore mentioned be taken out

before or not later than three months after the date of

grant of probate of the will of the deceased person, or

letters of administration of the estate of the deceased

person, as the case may be.

(2) Notwithstanding anything in subsection (1) of this

section, upon application being made in that behalf by a

person claiming the benefit of this Act, the Court or a

judge may, after hearing such of the persons affected or

likely to be affected by that application as it or he may

think fit, extend the time limited by that subsection for

the taking out of a summons for such further period as the

Court or judge may think necessary."

6. Central to the submissions made in support of the application is the proposition that the powers conferred by s3(4) stand alone and are unaffected by the limitation provisions contained in s11. In particular, counsel submitted that the exercise of my discretion should not be affected by the fact that the applicant filed her application at a time when the limitation period provided for by s11(1) had expired.

7. Section 3(4) is in terms similar to the Family Protection Act 1955 (NZ), s4(2). The latter provision appears to have its origin in the Family Protection Act 1908 (NZ), s33(7) which enabled the court to treat an application for provision filed on behalf of any person as an application on behalf of all persons who might apply, but was silent on the question of limitation. So far as I have been able to ascertain, neither of the New Zealand provisions has been the subject of any judicial consideration.

8. There is no jurisdiction to make any order under s3(4) unless some person has made an application under s3(1) for an order that provision be made for that person out of the estate of the deceased person. Where such an application is on foot, the court is possessed of two specific powers, namely, to order that the application be regarded as one on behalf of all possible claimants and to order that "for the purposes of s11" the application is to be treated as an application made by all those persons. The exercise of the latter power is dependant on the former having been exercised. At the same time the exercise of the former power does not require that the latter be exercised.

9. The legislature has directed its mind to two specific situations. The first is the situation where an order treating the application as one made on behalf of all possible claimants is made within the limitation period. In such an event s11 is irrelevant because, the order having been made within the appropriate time, the originating application taken out is deemed to have been made on behalf of all possible claimants at a time prior to the expiration of the limitation period. The limitation period contained in s11(1) is directed to the application by summons in chambers which the Act, s4(1) prescribes as the method by which an application for provision under the Act is to be made. That is now to be read as a requirement that the application be made by an originating application to a judge in chambers (Civil Process Rules Act 1985, s4(3); Civil Process Rules 1985, O1, r3(v)). If an order under the first limb of s3(4) is made before the expiration of the limitation period, an application for provision has been made by all possible claimants within that period so that no claim is liable to be defeated by s11(1). In such circumstances there is no occasion to make an order under the second limb of s3(4).

10. That view finds some support in In re Tiller (deceased); Gum v Tiller (1963) SASR 117, a decision of the Full Court of the Supreme Court of South Australia concerning legislation equivalent to the Act, which provided for a limitation period of six months. The statute did not contain a provision analogous to s3(4), but the Rules of Court provided that where an application for provision had been filed on behalf of any person it might, with the consent of any person or persons who might apply for provision, be treated as an application on behalf of all such persons. The court held that the rule did not affect the statutory limitation provision, so that a person who had neither filed an application to the court nor indicated an intention to join in the application within the limitation period was barred from taking advantage of the statute.

11. A number of the dicta which appear in the judgment of the Full Court in that case are at variance with views as to the effect of s11(1) expressed by Wright J in Chung Gon v Chung Gon A29/1993. I observe that In re Tiller does not appear to have been cited to Wright J. In re Tiller is authority for the fundamental proposition that the provision, without more, of a mechanism whereby a person not already an applicant may become an applicant without filing an originating application does not affect a limitation provision. It does not enable such person to avoid the consequences of a limitation provision when the step required to be taken for such person to become an applicant is not taken within that limitation period. Regardless of whether s11(1) goes to jurisdiction (which would appear to be the effect of In re Tiller) or whether it merely affords a defence (which is what was held in Chung Gon v Chung Gon), the reasoning in In re Tiller persuades me that an order under the first limb only of s3(4) would leave unaffected the applicability of s11(1) in circumstances where the order is made after the expiration of the limitation period.

12. The second limb of s3(4) is specifically directed to the case where the limitation period has expired without an order treating all claimants as applicants having been made. For the reasons which I have expressed it can have no operation if that period has not expired. It is a matter of discretion whether an order under the second limb of s3(4) is to be made. I do not accept the submission of the applicant that in the exercise of that discretion I am to disregard as being irrelevant the fact that the limitation period has expired and had expired at the time that the applicant filed her application. In my view the fact that the period has expired is a most relevant consideration. It is the fact which gives rise to the need for an order. The order, if made, would relieve the applicant from the consequences of her failure to make an application within time.

13. In the circumstances of the present case, the making of an order under the first limb of s3(4) without more would not be of any benefit to the applicant because it may be assumed that she would be met with a defence under s11(1). There is no occasion to make any order in favour of the applicant unless I conclude that orders should be made under both limbs. Whether an order should be made under the second limb is to be determined by reference to a consideration of whether it would be just as between the parties to allow the applicant to maintain a claim although she has permitted the limitation period to expire without making a claim. That is precisely the same question as that which would need to be determined were the applicant making an application for an extension of time under s11(2).

14. It is incumbent upon the applicant to put before me sufficient materials which would justify a conclusion that it would be just to make the orders which she seeks. Before such orders could properly be made it is necessary for there to be proper materials before me making it appropriate to exercise my discretion in favour of making an order.

15. The material which the applicant has placed before me is quite inadequate to justify a favourable exercise of my discretion. The affidavits are limited to proving the will, the extent of the estate of the deceased and other formal matters. There is no explanation for the delay in making the application and, more importantly, no material whatsoever that there is an arguable case on the merits in accordance with the test formulated in In re Allen (deceased) (1922) NZLR 218 (see also Clayton v Aust (1993) 9 WAR at 364), or indeed on any other basis. The only matter to which counsel pointed as indicating merit was the unusual provision that the applicant took her interest under the will contingently upon attaining the age of 33 years. That, without more, is quite insufficient to demonstrate an arguable case. A fortiori it is quite insufficient to justify the making of the orders which the applicant seeks.

16. I raised the question of the inadequacy of the evidentiary material during argument on several occasions. Despite that, counsel did not apply for an adjournment to enable the material to be supplemented but was content to rely on the material before me and his argument, which I have not accepted, that the fact that the limitation period has expired is entirely irrelevant.

17. For the reasons which I have expressed, the application must fail. It is dismissed.

Family Maintenance Act 1912

Family Protection Act 1955

Family Protection Act 1908

(Civil Process Rules Act 1985

Civil Process Rules 1985

Mark Anthony West (An Infant) By His Next Friend Jane Lillianne West v Arthur John West and Maxwell James West [1996] TASSC 17;

At a glance

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Judgment (26 paragraphs)

Mark Anthony West (An Infant) By His Next Friend Jane Lillianne West v Arthur John West and Maxwell James West [1996] TASSC 17; (1996) 5 Tas R 392 (29 March 1996)

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Legislation Cited (5)

Cases Cited (1)