22 Clare swore an affidavit on 23 June 2000. She swore another affidavit on 6 July 2000. When the matter next came on for hearing on 28 July 2000 Clare was cross-examined.
23 The hearing did not conclude on 28 July. After it had proceeded for less than an hour, and after the oral evidence of Clare had been completed application was made on behalf of the Plaintiffs, which was opposed by the Defendant, for the hearing to be adjourned, with a view to further affidavits being relied upon on behalf of the Plaintiffs. Despite the opposition of the Defendant, I granted that application, noting that on the adjourned hearing the Defendant might wish to further cross-examine Clare. I also ordered that the Plaintiffs pay the costs of the Defendant thrown away by reason of the adjournment.
24 The adjourned hearing resumed on Friday, 20 October 2000. In the meantime a further affidavit had been sworn by Clare, on 3 August 2000. In that last affidavit she stated (paragraph 2) that she "must correct mistakes in both affidavits [of 23 June 2000 and 6 July 2000], and, in particular, at paragraph 8 of the affidavit sworn 23 June 2000".
25 In each of her affidavits of 23 June 2000 (paragraph 8) and 6 July 2000 (paragraph 8) Clare swore that in 1992 she consulted Mr Brian Hudspeth, solicitor, at his office at Warilla, for the purpose of enquiring about her rights in the estate of her late father-in-law, the Deceased. She persisted in that evidence under cross-examination on 28 July 2000.
26 In her cross-examination on 28 July Clare stated that she had learnt of the terms of the Deceased's will some "fourteen, sixteen years ago" when her son-in-law had told her about a meeting he had had with the Defendant's son-in-law.
27 In her affidavit of 3 August 2000 Clare stated that she did not attend the office of Mr Hudspeth at Warilla at any time in relation to the estate of the Deceased, asserting that her confusion arose from the fact that she had attended Mr Hudspeth's office at Warilla on some earlier occasion, when her husband Ronald Smith was still alive and Clare sought advice from Mr Hudspeth about the possibility of obtaining a restraining order against Mr Smith.
28 In her affidavit of 3 August 2000 Clare asserted that communications with Mr Hudspeth concerning the estate of the Deceased were made through the medium of her children Leanne and Gregory and Leanne's husband Michael since Clare was living in Manilla at the time and could not conveniently travel to Mr Hudspeth's offices which were located near Wollongong. In that affidavit Clare also referred to her knowledge of a conference which Mr Hudspeth had arranged for Leanne and a Sydney barrister, Mr Maiden, but said that Clare herself did not attend that conference because of the distance involved in her travelling from Manilla to Sydney for that purpose.
29 Although in her oral evidence under cross-examination on 28 July Clare referred to learning about the Deceased's will some "fourteen, sixteen" years earlier, nevertheless, in her affidavit of 3 August 2000 (paragraph 5) she sought to retract that statement by saying that if she "couldn't claim to know precisely when it was or precisely the words [Leanne] used." She then referred to information allegedly communicated to Leanne's husband, Michael Prinsse, by the Defendant's son-in-law, Daniel Tyce, at a football match.
30 Clare was further cross-examined on 6 October 2000. Essentially, the effect of what she said under cross-examination was that she wished to withdraw the entirety of the evidence which she had given on 28 July 2000. She asserted that she was confused on that earlier occasion. She said that she had no independent recollection of the date upon which she first found out about the provisions of the will of the Deceased, and that she had relied solely on what Leanne had told her.
31 I have had the opportunity on two occasions to observe the Third Plaintiff giving oral evidence under cross-examination. I consider that she was a totally unreliable historian. Nevertheless, I am not satisfied that she was deliberately fabricating her evidence or that she was deliberately attempting to mislead the Court.
32 Both Leanne Pinch and her husband Michael Pinch were cross-examined on their respective affidavits. The evidence of Michael Pinch concerning the alleged conversation with the son-in-law of the Defendant, and the alleged date of that conversation and his obtaining within a few days thereafter a copy of an exemplification of the probate of the will the Deceased was corroborated by the calendar of football matches which he annexed to his affidavit and, in my view very significantly, by the fact that the date of the exemplification was 28 April 1992. Further, there was no evidence to suggest that either Leanne or her husband Michael Pinch (through whom Clare obtained the totality of her information concerning the estate of the Deceased) had any knowledge of the details of that estate before 1992.
33 I recognise that Mr Tyce (who in his affidavit of 3 October 2000 totally denied the alleged conversation between himself and Mr Pinch at the football match) was not cross-examined. Counsel for the Plaintiff stated that that was a result of a forensic decision made by Counsel in that regard.
34 I have had the benefit of receiving from each Counsel a written outline of their respective submissions. Those written outlines will be retained in the Court file.
35 There was considerable argument concerning which party bore the evidentiary burden of establishing whether or not the Third Plaintiff first discovered or might with reasonable diligence have discovered facts of the nature described in section 47 (1) (e) of the Limitation Act within the period referred to in that paragraph.
36 The Defendant relied upon the decision of the High Court of Australia in Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, at 285 per Mason CJ and Gaudron J. However, that passage deals with the entitlement of a plaintiff to take advantage of a proviso to the limitation defence contained in the (now repealed) provisions of section 69 of the Trustee Act 1925. The present Plaintiffs, in submitting that the evidentiary onus in this regard rested upon the Defendant, relied upon the decision of the Appeal Division of the Supreme Court of Victoria in Pullen v Gutteridge Haskins & Davey Pty Limited (1993) 1 VR 27 at 72-73. That latter judgment appears to me to have greater relevance to the circumstances of the instant case.
37 It is no part of a cause of action of the nature sued upon by the Plaintiffs, being in respect to the wrongful distribution to herself by the Defendant of one half of the assets of the estate of the Deceased, that the claim is not statute barred. Indeed, it is my understanding that, had it not been for the enactment of section 47 of the Limitation Act, there would have existed no limitation upon the making of the claim or the granting of the remedy in respect of such a cause of action (see Jacobs, Law of Trusts in Australia, 5 ed. (1986), [2219]; see also, Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 3 ed. (1992), Chapter 34.)
38 It is my understanding, therefore, that the evidentiary burden of establishing the matters set forth in paragraph (e) of section 47 (1) of the Limitation Act rests in the instant case upon the Defendant.
39 But, in any event, and even if (contrary to my foregoing understanding of the law in this regard) the evidentiary burden of establishing compliance with the foregoing provision rests upon the Plaintiffs, I am satisfied that the Third Plaintiff has adequately discharged that burden.
40 Had the affidavit evidence and the oral evidence of Clare stood alone, it would have been somewhat difficult for the Plaintiffs to have established that it was only in 1992, rather than some fourteen to sixteen years ago, that Clare had first discovered the facts and circumstances surrounding the will of the Deceased. But that evidence did not stand alone. It was supported by the evidence of Leanne and her husband (including, significantly, the exemplification of the probate which Mr Pinch obtained on 28 April 1992). The assertion that it was only in 1992 that Mr Hudspeth was consulted concerning the rights of Clare in the estate of the Deceased was also supported by the contents of Mr Hudspeth's file, which was in evidence (Exhibit 2).
41 I am satisfied, upon the balance of probabilities, that Clare first discovered those facts and circumstances only in 1992. Further, in the light of the personal relationship between Clare and her first, and by then long deceased, husband (against whom she was considering at one stage obtaining a restraining order), I am satisfied that she could not with reasonable diligence have discovered the foregoing facts and circumstances before she did so in 1992.
42 It follows from my foregoing conclusion (since the period of twelve years from 1992 had not expired before the date of the filing of the amended summons) that the Defendant cannot succeed upon the defence relied upon in the terms of the notice pursuant to Part 5, Rule 5B of the Supreme Court Rules.
43 In my conclusion the Third Plaintiff has established her entitlement to receive one half of the estate of the Deceased upon the intestacy of her late husband.
44 It follows, therefore, that I should make a declaration of the nature sought in prayer 2 in the amended summons.
45 It must be appreciated that this is a very small estate. At the time of the grant of probate, one half of the net assets totalled less than $16,000.
46 The amended summons seeks an order for the taking of an account of all moneys received and disbursed by the Defendant in respect to the estate of the Deceased and the dealings and transactions of the Defendant therewith (prayer 3), an order that an inquiry be held as to whether any, and if so what, property being part of the estate of the Deceased has been lost or misappropriated and when and by whom and under what circumstance (prayer 4); and an order that the Defendant pay to the First and Second Plaintiffs or to the Third Plaintiff (as applicable) the amount, if any, which shall be found to be due to them or her upon the taking of accounts, together with interest thereon (prayer 5).
47 It does not seem to me, in the circumstances of this case, especially the very small monetary value of the estate, to be appropriate that an order should be made for the taking of accounts, or for an inquiry of the nature sought in prayers 3 and 4 in the amended summons. That relief amounts almost to relief in the nature of an order for the general administration of the estate. Such relief seems to me to be out of all proportion to the extremely small size of the estate.
48 I consider that the Third Plaintiff is entitled to an order that the Defendant pay to her the sum of $15,548, together with interest thereon at Supreme Court rates from the date of death of the Deceased until payment. (The sum of $15,548 is the sum which the Defendant in her application for probate disclosed as being the total of the two shares (each of two eighths of the estate) due to Gregory and Leanne.)
49 It is appropriate that liberty to apply in respect to the enforcement and implementation of that order should be reserved.
50 The Third Plaintiff is entitled to an order that her costs be paid personally by the Defendant. Since it was the conduct of the Defendant herself, in filing a misleading statement in support of the application for probate, which largely brought about the situation where the First and Second Plaintiffs became parties to the proceedings, and since the Defendant did not choose to swear an affidavit in the matter, and did not attempt in any way to defend the proceedings upon their merits but to oppose (as she was undoubtedly entitled to do) the relief claimed upon only the asserted extinguishment of the entitlement of the Third Plaintiff in consequence of the provisions of Section 47 of the Limitation Act, I consider it appropriate that the Defendant personally should pay the costs of the First and Second Plaintiffs as well.
51 Accordingly, I make the following orders:
1. I declare that the Defendant has at all times since 7 July 1986 held one half of the assets of the estate of the late John Smith ("the Deceased") in trust for the Third Plaintiff, Clare Georgina Burnett.
2. I order that the Defendant pay to the Third Plaintiff the sum of $15,548, representing one half of the assets of the estate of the Deceased, together with interest upon such sum from 7 July 1986 until the payment of such sum, such interest to be at Supreme Court rates.
3. I reserve to the Plaintiff liberty to apply in respect to the implementation and enforcement of Order 2 hereof.
4. I order that the Defendant personally pay the costs of the Plaintiffs of the proceedings, and that the Defendant not be entitled to have recourse to the assets of the estate of the Deceased for such purpose.