Plaintiff v Defendant

43 The plaintiff submitted that the common thread running through all of the sibling cases was the importance of assessing, when determining whether a deceased had a responsibility to provide for his or her sibling, the nature and quality of the relationship between them.

44 In relation to the considerations listed in s 91(4) of the Act, the defendant submitted as follows:

• as to paragraph (e), the plaintiff had never met the deceased and did not have an actual relationship with him;

• as to paragraph (f), the deceased was not obliged to provide for a person who he had never met;

• as to paragraph (g), the estate is reasonably sized;

• as to paragraph (h), the plaintiff is of modest means;

• as to paragraph (i), the plaintiff is autistic and has a mild intellectual disability;

• as to paragraph (j), the plaintiff is 56 years of age;

• as to paragraph (k), the plaintiff did not make any contribution to the building up of the estate or the welfare of the deceased;

• as to paragraph (l), the deceased gave no benefits to the plaintiff;

• as to paragraph (m), the plaintiff had never been maintained by the deceased before his death;

• as to paragraph (n), the plaintiff has been maintained by her parents, and the three of them live in a unit that the parents own unencumbered;

• as to paragraph (o), Michael has agreed to become the plaintiff's principal carer in due course;

• as to paragraph (p), it is unclear as to whether the deceased would have still provided for the plaintiff had he known that Michael was to kill him, and had Michael died before the deceased, the deceased may have changed his will and the plaintiff may not have received any part of the deceased's estate.

45 Counsel for the plaintiff emphasised that the features of this case presented a unique factual matrix, not directly comparable to any decided case. Counsel submitted that the ultimate determination of the proceeding would depend upon the application of that unique factual matrix to the provisions of the Act in circumstances where those provisions did not contain any prescribed category of applicants, but instead enabled the Court to determine on a case by case basis whether a claimant was a person to whom the deceased owed a responsibility to make provision for out of their estate.

46 In support of the need to proceed on a case by case basis, the plaintiff referred to the decision of Kaye J (as he then was) in Unger v Sanchez[50] in which a claimant under Part IV succeeded notwithstanding that the person was unrelated to the deceased but had been a close friend for many years and provided the deceased with great assistance during her life. His Honour stated:[51]

The nature and content of the moral obligation of the wise and just testator is not fixed or static. Rather, it is a flexible concept, the measure of which is adapted to conform with what is considered to be right and proper according to contemporary accepted community standards.[52]

The plaintiff also relied upon Iwasivka v State Trustees[53] as a further illustration of a successful claimant under Part IV of the Act who was only very distantly related by marriage to the deceased.

47 The plaintiff also relied upon the judgment of the Court of Appeal in Blair v Blair[54] referred to earlier in these reasons in support of the proposition that, when determining whether an applicant was a person for whom the deceased had a responsibility to make provision for out of their estate, it was necessary for the Court to consider, amongst other things, 'any other matter the Court considered relevant' as referred in s 91(4)(p). The plaintiff referred to the judgment of Mandie J in Petrucci v Fields[55] to demonstrate the width of this provision and as an illustration of a case which was determined principally on the basis of 'other matters' that the Court considered to be relevant.

48 In oral submissions, counsel for the plaintiff identified three 'special circumstances' which, it was submitted, were relevant matters to be taken into account pursuant to s 91(4)(p) of the Act:

(b) the plaintiff is not able to provide for herself and is dependent upon the care of her elderly parents, which care will likely end in the future; and

(c) the plaintiff has a sibling (Michael) living in Victoria who was in a long term relationship without 'ordinary family commitments of his own', such as dependent children, and the other siblings live interstate, making it more likely that Michael will have the responsibility to provide for the plaintiff.

The plaintiff argued that these circumstances 'cast the spotlight wider' in identifying who had a responsibility to provide for the plaintiff, including the deceased.

49 On the basis of these special circumstances, the plaintiff submitted that the case posed interesting and unique questions for the Court, namely:

(a) What would prevailing community standards, being the criteria against which moral duty and obligation must be required, require in this case?

(b) Where one has an adult disabled sibling, under the care of their parents who will be expected to eventually pass on and especially when one has no children of their own, do community standards expect a sibling of such disabled sibling to have some obligation to make provision out of their estate for them?

(c) Where such a sibling is in a marital relationship or the equivalent, should such obligations also flow on to their spouse? [56]

50 Counsel for the plaintiff submitted that, in light of the above propositions, the question of whether or not the deceased owed a responsibility to make provision for the plaintiff was a debatable point of law. Reliance was placed on the statement by Derham AsJ in Re Bertine that the court 'will not make an order summarily dismissing a claim where the claim raises a debatable point of law'.[57]

51 In relation to the 'sibling cases' referred to by the defendant, the plaintiff accepted that they established that, ordinarily, or in the absence of special circumstances, a sibling relationship would not be sufficient to provide the basis for a successful claim under Part IV of the Act. It was contended however that the present matter did not involve an ordinary sibling relationship because of the existence of the special circumstances referred to above. In none of the cases relied on by the defendant was the claimant a disabled sibling being cared for by her elderly parents.

52 The fact that the plaintiff had never met the deceased was submitted to be explicable by the unique facts of the case and in particular the fact that that Michael's relationship with the deceased was not revealed to his family. Nevertheless, the plaintiff was named in the will as an alternate beneficiary. Moreover, it was submitted that there is no indication in s 91 that it is a prerequisite that a person claiming further provision have met the deceased.

53 Counsel for the plaintiff sought to distinguish Jackson v Newns relied on by the defendant on the basis that the ratio decideni of the decision was merely that, in the circumstances of that case, there was no responsibility owed beyond an obligation to provide $250,000, because the will, unlike the present case, did make provision in that amount for the claimant.

54 In resisting an order for summary dismissal, it was contended on behalf of the plaintiff that it could not be asserted that, as a permanently disabled person and disability pensioner, the plaintiff was not in a position of some financial need and not in need of additional long term financial security. Although her parents had the primary obligation to make provision for her out of their estates, it was submitted that the plaintiff was one of five children and the estate of the survivor of her parents was likely to be modest.

55 It was also submitted on behalf of the plaintiff that the circumstances of the deceased's death were irrelevant to the plaintiff's position in this proceeding because Michael had already forfeited any entitlement to take any benefit in his estate. There was no basis for treating the circumstances of the deceased's death as a factor which would otherwise extinguish any obligation otherwise owed by the deceased to the plaintiff.

56 Finally, the plaintiff submitted in the alternative to its submissions in opposition to the application for summary judgment, that this case was an appropriate case for the Court to exercise its discretion pursuant to s 64 of the Civil Procedure Act to direct the plaintiff's claim be determined at a full trial after consideration of all issues. The plaintiff took issue with the defendant's contention that, because the application for summary dismissal did not involve any contested issues of fact and was based upon the plaintiff's own evidence, the Court as presently constituted was in as good a position as the trial judge to determine the jurisdictional issue. It was submitted that the Court could not proceed on such a basis in the absence of an undertaking from the defendant - which was not proffered - that at trial it would not adduce any evidence of its own and that it would not seek to cross-examine the plaintiff's litigation guardian in relation to her affidavit.

57 The Court as presently constituted is in as good a position as at trial to determine whether the plaintiff was a person to whom the deceased had a responsibility to make provision for her proper maintenance and support so as to enliven the Court's jurisdiction under Part IV of the Act. There is no controversy about the principles of law which apply to the determination of that jurisdictional question. The evidence relied upon by the plaintiff is uncontested and she has had an opportunity to file any further affidavit material in support of her claim. The application for summary dismissal takes the plaintiff's evidentiary case at its highest and has been brought in a timely way. If the matter proceeded to trial, it is difficult to conceive of how the plaintiff's case could be improved. Contrary to the plaintiff's submissions, in dealing with the application for summary dismissal in this way, there is no occasion to require the defendants to give undertakings to the Court about how it would run its case at trial in the event that the proceeding is not dismissed.

58 I am nonetheless cognisant that the power to summarily dismiss a proceeding must be exercised with caution. Adopting that approach, for the reasons which follow, I have determined that the plaintiff's application under Part IV of the Act should be summarily dismissed as it is bound to fail. I have reached that conclusion because, taking the plaintiff's case it its highest and having regard to the considerations set out in s 91(4) of the Act, there is no real question to be tried that the deceased had a responsibility to make provision for the plaintiff from his estate. I consider that, in the circumstances of this case, the contrary view is unarguable.

59 I accept as counsel for the plaintiff submitted that the Act in its terms relevant to this proceeding did not require a claimant under Part IV to be a particular class of relative or person and that it contemplates that the Court will determine on a case-by-case basis whether the claimant is a person to whom the deceased owed a responsibility to make provision for out of his estate. I also accept that the facts and circumstances of this case are quite unique.

60 These acknowledgements however do not take the plaintiff very far. As stated by Harper J in Schmidt v Watkins,[58] the Court does not exercise 'an unprincipled discretion to decide whether a particular claimant was or was not a person for whom the deceased had the requisite responsibility'. The particular circumstances of this case - however unique - fall to be considered by reference to established principles in relation to provisions of the Act which confer only a limited jurisdiction to interfere with freedom of testation. As Dodds-Streeton J stated in MacEwan Shaw v Shaw, the Act 'does not license the court to effect a redistribution of an estate because it would satisfy notions of familial generosity, or because the claimant has few resources and the defendant taking benefits under the will is relatively well off'.[59]

61 The authorities referred to above make clear that, in determining the jurisdictional question posed by s 91(1) of the Act, the Court is bound to have regard to each of the matters set out in s 91(4)(e) to (o) and any other matter relevant pursuant to s 91(4)(p). Here, as counsel for the defendant acknowledged,[60] a number of those considerations, viewed in isolation, might be suggestive of a positive answer to the jurisdictional question. However, as Nettle JA (as he then was) made clear in Blair, the matters referred set out in those paragraphs of s 91(4) are themselves incapable of providing an answer to the jurisdictional question. In taking those matters into account in determining whether a testator had a responsibility to make provision for a claimant, the test is whether a wise and just testator would have thought it his or her moral duty to make provision for the claimant.

62 Counsel for the plaintiff accepted that the determination of whether or not the deceased had a moral duty to provide for the plaintiff requires an examination of the nature and substance of the relationship between them. In focusing on that matter, the defining, but not only, relevant feature of this case is that the plaintiff and the deceased never met. Save that they were 'de facto siblings in-law', they had no actual relationship. In this sense, as counsel for the plaintiff accepted, the plaintiff had only a 'bare' or 'nominal' relationship with the deceased. [61]

63 Counsel for the plaintiff submitted that, in considering the relationship between a deceased and a claimant under Part IV of the Act, the relevant enquiry concerned their 'connection', as distinct from, for example, whether and how often they had met, what they did with and for each other and how they may have supported each other.

64 No authority was identified to support the proposition that an examination of the relationship between a deceased and a claimant under Part IV of the Act was directed at the identification of their 'connection'. While the identification of the 'connection' between a deceased and a claimant under Part IV of the Act (such as that of de facto siblings in-law) would self-evidently form part of the examination with which the jurisdictional question is concerned, as counsel for the plaintiff acknowledged, that examination concerns the 'nature' and 'substance' of the identified relationship or 'connection'. The plaintiff's submission that s 91 does not impose any prerequisite that a claimant under Part IV of the Act have actually met the deceased misses the point. The fact that a claimant under Part IV of the Act had a particular 'connection' with the deceased is only the beginning of the analysis. Here, the relationship of de facto siblings in-law between the deceased and the plaintiff was devoid of any substance because they had never met. The reasons why the plaintiff and the deceased never met are in my view of little consequence in determining the jurisdictional question.

65 The plaintiff's emphasis upon the existence of a mere connection between the plaintiff and the deceased as de facto siblings in-law is also contrary to the principles which emerge from the line of authorities dealing with claims for further provision brought by siblings.[62] As counsel for the plaintiff accepted, those authorities establish that, ordinarily and in the absence of special circumstances, a sibling relationship will be insufficient to provide a basis for a successful claim under Part IV of the Act. The bare existence of a sibling relationship, or 'connection' as the plaintiff submits, is insufficient to establish that a deceased had a responsibility to make provision for their sibling.[63] There is no logical or rational reason why prevailing community standards would more readily identify such a responsibility in the context of a sibling relationship created by marriage or other relationship.

66 The plaintiff's description of the matters referred to in paragraph 48 above as 'special circumstances' which justify a departure from the general positon in the sibling cases is a misnomer. As counsel for the defendant submitted, they are all matters which the Court must take into account in determining the question of jurisdiction posed by s 91(1) of the Act. The fact that the plaintiff is an adult under a disability is a matter to which the Court must already have regard pursuant to paragraph (i) of s 91(4). The fact that the plaintiff is being cared for by her parents is a matter to be taken into account pursuant to paragraph (n) of s 91(4). The fact that the deceased did not have children of his own is a factor to be take into account pursuant to paragraph (f) of s 91(4). I agree with the defendant's submission that whether or not Michael has children is not relevant to the plaintiff's claim for further provision from the deceased's estate. The plaintiff has not identified any 'special circumstances' which might be relevant 'other matters' to be taken into account pursuant to s 91(4)(p) and which would not fall for consideration in any event within one of the other paragraphs in s 91(4). It follows that I do not accept that there is a proper foundation for the claim that this case poses the 'interesting and unique' questions referred to by the plaintiff so as to make the it unsuitable for summar[64]dismissal.64

67 Nor is it correct to say, on the basis of Derham AsJ's judgment in Re Bertine, that the plaintiff's claim raises a 'debatable point of law' so as to render the grant of summary dismissal as inappropriate. His Honour's observations were not made in relation to proceedings under Part IV of the Act but in the context of the Court's probate jurisdiction about which his Honour accurately described the Court as having 'an inquisitorial role that requires a greater supervision and control of proceedings than adversarial common law proceedings'.[65] In any event, the proceeding does not raise a debateable question of law because there is no controversy between the parties about the legal principles which govern the determination of the question of jurisdiction in s 91(1) of the Act.

68 As stated by Harper J in Schmidt v Watkins,[66] a duty to provide for the proper maintenance and support of a person does not arise unless the relationship between the deceased and the claimant has within it a 'particular quality'. His Honour referred to a '"domestic [relationship] where there is mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner"' as being sufficient to bring either one of those partners within the class of persons to whom the other had responsibility. To similar effect, Whelan J's statement in Webb v Ryan,[67] suggests that the focus is on whether the relationship had 'a material resemblance or equivalence to the type of family relationship from which notions of moral duty and obligation are commonly derived'.

69 It is unnecessary for the purposes of this application to chart the metes and bounds of the 'particular quality' which must be evident in a relationship to give rise to the duty on a testator to make provision for a person. That is because, in this case, there was no actual relationship between the plaintiff and deceased, let alone one of 'particular quality'. The authorities to which I have referred make clear that the question of jurisdiction is to be determined by reference to the nature and quality of the relevant relationship, not the mere fact that a claimant under Part IV is related to the deceased by blood, marriage or otherwise.[68]

70 There are two other specific features of this case which, in addition to the absence of any actual relationship between the deceased, support a conclusion that the deceased did not owe a duty or moral obligation to the de facto sister-in-law he never met. First, there is no evidence that the deceased ever gave any indication that he felt obliged or duty-bound to provide for the plaintiff, or that he otherwise acknowledged, assumed or adopted any responsibility towards her. For the reasons given by Mukhtar AsJ in Jackson v Newns,[69] with which I agree, the fact that the will in this case included a substitute residuary clause pursuant to which the plaintiff might benefit, is not evidence that the deceased had or accepted a responsibility to provide for the plaintiff. It is possible to conceive of a case where a deceased accepted responsibility to provide for a sibling in-law that they never met. It might be that, in an appropriate case, having regard to the considerations in s 91(4), the evidence might be sufficient to satisfy the jurisdictional question in s 91 of the Act. That, however, is not this case. There is no evidence from which it could be inferred that the deceased acknowledged or accepted any obligation towards the plaintiff.

71 The second feature to which I refer is the fact that, analogously with Dodds-Streeton J's observations in MacEwan Shaw v Shaw,[70] it is the plaintiff's parents who have prime responsibility to make provision for her. Although their capacity to continue to discharge that responsibility on an ongoing basis into the future is limited by their advanced years, it appears likely that they will leave an estate, albeit modest in size,[71] of which the plaintiff would likely have a paramount claim as compared to her able bodied siblings who live overseas and interstate.

72 I consider that, on the plaintiff's evidentiary case, these features together with the fact that the deceased never met the plaintiff, render as untenable the proposition that the deceased had a moral duty to provide for the plaintiff. I do so having taken into account those other matters referred to in s 91(4) of the Act which might otherwise be said to answer the jurisdictional question posed by s 94(1) in the plaintiff's favour and in particular the fact that the plaintiff is a permanently disabled person of limited means who is in a position of some financial need and long term financial security. Those considerations do not alter the fact that the existence or otherwise of a responsibility to provide requires the existence of a relationship between a claimant and a deceased of a 'particular quality'.

73 The authorities of Unger v Sanchez, Iwasivka and Petrucci v Fields do not assist the plaintiff's case. Although in Unger v Sanchez the successful plaintiff was not a member of the deceased's family, she was a person who befriended an elderly couple and provided them with extraordinary care. [72] Kaye J (as he then was) was satisfied on the evidence that the plaintiff and the deceased had a '"quasi-parental" relationship'[73] that was 'closely akin to that of a daughter to an elderly mother'.[74] Analogously in Iwasivka,[75] although the successful plaintiff was a niece by marriage,[76] 'the true characterisation of their relationship was that of mother and daughter or as close as it may be'.[77] It was that relationship which 'provided the foundation for the deceased having had responsibility to make provision for the plaintiff.'[78] In Petrucci v Fields,[79] although the successful plaintiff was a daughter-in-law, she was particularly dutiful, regularly cooking and cleaning for her parents-in-law during her mother-in-law's long illness and continuing to do so for her father-in-law (the deceased) after her mother-in-law passed away.[80] The plaintiff visited the deceased at least weekly over a period of 32 years.[81]

74 Contrary to the plaintiff's submissions, the above three authorities provide further illustration of the principle that it is the nature and quality of the relationship between the deceased and a claimant under Part IV of the Act - rather than the mere connection between them - which gives rise to the obligation of the deceased to make provision for another.

75 For the above reasons, the plaintiff's application under Part IV of the Act should be dismissed because it is bound to fail. In my view, there is no real prospect of establishing that the deceased owed a responsibility to make provision for the plaintiff's maintenance and support from his estate.

Section 64 of the Civil Procedure Act 2010

76 Having determined that the plaintiff's claim has no real prospect of success, I reject the plaintiff's submission that this is an appropriate case for the Court to exercise its discretion pursuant to s 64 of the Civil Procedure Act 2010 to direct the plaintiff's claim be determined at a full trial after consideration of all issues. The application for summary dismissal has been brought at an early stage in the proceeding and takes aim at the plaintiff's case by reference to her own uncontroverted evidence. The Court as presently constituted is in as good a position as the trial judge to determine the jurisdictional issue and there is no occasion to require the defendant to give undertakings[82] in relation to how it might conduct its case at trial in order to entertain the summary dismissal application. In exercising my discretion I also take into account the desirability of avoiding unnecessary further litigation over the deceased's estate in circumstances where considerable litigation has already occurred and where the deceased died more than seven years ago in violent circumstances which must have been particularly traumatic for his family and friends. Given these matters, there is no utility in proceeding to trial with a case which rests upon an unarguable jurisdictional basis.

[1] Director of Public Prosecutions v Michael Anthony O'Neill [2015] VSC 25.

[2] As determined by McMillan J in Re Rattle [2018] VSC 249.

[3] Re Rattle (No 2); Equity Trustees Ltd v Halstead [2018] VSC 700.

[5] The plaintiff's litigation guardian is her mother, Anne Mary O'Neill.

[6] As described in the Affidavit of Anne Mary O'Neill sworn 14 March 2019, [10].

[7] See Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158, [29]; Utility Services Corporation Ltd v SPI Electricity Pty Ltd [2012] VSCA 158; (2012) 35 VR 628.

[8] [2016] VSC 139, [8].

[9] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, 39 [29].

[10] Utility Services Corporation Ltd v SPI Electricity Pty Ltd [2012] VSCA 158; (2012) 35 VR 628, 641 [48] (Dixon AJA).

[11] Ibid 629 [1] (Bongiorno JA), 630 [8] (Beach AJA).

[12] Re Moschoudis [2016] VSC 139, [8].

[13] Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, [35] (Warren CJ and Nettle JA).

[14] [2014] VSC 229, [34]. Reliance was also placed on similar observations by Zammit AsJ (as she then was) in IMO the will and estate of Angelo Marotta (deceased) [2011] VSC 324, [40]-[41].

[15] [2011] VSC 32, [11].

[16] The terms of s 91 at the relevant time did not include the amendments made by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 which commenced operation on 1 January 2015.

[17] Schmidt v Watkins [2002] VSC 273, [8]-[9].

[18] Administration and Probate Act 1958, s 91(1).

[19] Second Reading Speech by the Attorney-General (Hon Jan Wade) on the Wills Bill, Legislative Assembly, 9 October 1997, Hansard at 436; see also the Second Reading Speech on the same Bill by the Minister for Small Business (Hon Louise Asher), Legislative Council, 12 November 1997, Hansard at 449.

[20] Schmidt v Watkins [2002] VSC 273, [12].

[21] Ibid, [22]-[23] (citations omitted).

[22] [2004] VSCA 149.

[25] Collicoat v McMillan [1999] 3 VR 803, 815 (Ormiston JA).

[26] Schmidt v Watkins [2002] VSC 273, [8] set out in paragraph 25 above.

[28] [2012] VSC 377, [17] (citations omitted).

[30] [2011] VSC 32.

[35] [2003] VSC 318.

[38] [2001] VSC 371.

[41] [2004] VSC 231.

[43] [2014] VSC 427, [60].

[45] [2007] VSC 280.

[46] [2011] VSC 324.

[49] [2013] VSCA 208, [24] (citations omitted).

[50] [2009] VSC 541.

[52] Collicoat v McMillan [1999] 3 VR 803, 818 [43] (Ormiston J); Lee v Hearn [2005] VSCA 127, [8] (Callaway JA).

[53] [2005] VSC 323.

[54] [2004] VSCA 149.

[55] [2004] VSC 425.

[56] It was not contested that the deceased and Michael were in a very long term same sex relationship and were for all purposes spouses.

[57] [2019] VSC 228, [65].

[58] See paragraph 25 above.

[59] See paragraph 35 above.

[60] See paragraph 44 above.

[61] This acceptance was subject to the qualification that the plaintiff might in the future have had a much closer relationship with the deceased.

[62] See paragraphs 37-42 above.

[63] As stated by Zammit AsJ (as she then was) at [49] in Re Will and Estate of Marotta [2011] VSC 324, 'An ordinary sibling relationship will not in the absence of special circumstances provide a basis for interference with testamentary freedom'. Her Honour also observed at [50] that, 'If there was no evidence before the court in relation to financial and emotional assistance, then it would be appropriate for the matter to be summarily dismissed'.

[64] See paragraph 49 above.

[65] [2019] VSC 228, [18].

[66] See paragraphs 25 to 27 above.

[67] See paragraph 31 above

[68] In the case of parent/child relationships, as stated by Robb J in Lado Causillas v NSW Trustee & Guardian [2015] NSWSC 1204 at [337], 'The parent's responsibility for bringing the child into the world leads to the assumption of a duty to be concerned for the child's welfare that may entitle the child to the making of a family provision order, even in an extreme case where the parent did not become aware of the birth of the child'. This reflects what Bryson J referred to as the 'very great importance in morality' of the 'bare fact [of paternity]': Gorton v Parks (1989) 17 NSWLR 1, 10. Nevertheless, even in such cases, 'The entitlement to an appropriate family provision order does not, however, flow from the mere fact of a parental relationship. All relevant circumstances must be taken into account, and there may be occasions when the responsibility of the child for the estrangement between the child and the parent will diminish or negate the parent's duty to be concerned with the welfare of the child': Lado Causillas at [337].

[69] See paragraph 34 above.

[70] See paragraph 35 above.

[71] See the matters referred to in paragraph 16 above.

[72] [2009] VSC 541.

[75] [2005] VSC 323.

[76] The plaintiff's father was the brother of the deceased's husband.

[77] Iwasivka v State Trustees Ltd [2005] VSC 323, [69] (Hansen J).

[78] As submitted by the plaintiff at [71] and accepted by the Court at [93].

[79] [2004] VSC 425.

[82] The plaintiff submitted that the Court should not proceed on the basis that the Court as presently constituted is in the same positon as the trial judge unless the defendant undertook that at trial it would not adduce any evidence of its own and that it would not seek to cross-examine the plaintiff's litigation guardian in relation to her affidavit.