Practice and procedure - Conditional appearance to originating summons - Summary judgment application - Application for summary judgment incompetent because no appearance - No want of jurisdiction

Inheritance (Family and Dependants Provision) Act 1972, s 6, s 7

Dehnert v The Perpetual Executors and Trustees Association of Australia Ltd [1954] HCA 47; (1954) 91 CLR 177

Grey v Harrison [1997] 2 VLR 359

Mayor, Aldermen and Citizens of Coventry v Surrey County Council [1935] AC 199

McPherson v Horton, unreported; SCt of WA (Murray J); Library No 9503; 14 June 1995

Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9

Re C K (Deceased) [1949] NZLR 874

Re McDowell (Deceased) [1958] NZLR 455

Re Nielsen (Deceased) [1968] Qld R 221

Reeves v Berge Phillips (1982) 7 Fam LR 940

1 MASTER SANDERSON: The plaintiff in this matter issued an originating summons on 11 October 1999. The action was brought under the provisions of the Inheritance (Family and Dependants Provision) Act ("the Act") and related to the will of Edward John Hamilton Rowan (deceased). The originating summons was in a form which required an appearance by the defendant. A conditional appearance under the provisions of O 12 r 6(1) was entered by the defendant on 1 November 1999. By summons dated 12 November 1999 the defendant applied to set aside the originating summons. The defendant also applied for summary judgment under O 16.

2 The entry of a conditional appearance in response to an originating summons is an unusual procedure. However, O 12 r 6 allows for the entry of a conditional appearance "in any cause". An application under the Inheritance Act is clearly a "cause" as that term is used in the rule. The question raised by a conditional appearance is whether or not the court has jurisdiction to deal with the matter in question. Disputes most often arise in relation to service of process on foreign defendants. But there is no reason why, in any case, a defendant cannot raise a jurisdiction question at the outset.

3 In relation to the summary judgment application there is a difficulty. Order 16 allows an application to be made "within 21 days after appearance". The requirements of an appearance are set out in O 12 r 2. In particular, the appearance must be in accordance with the specified form. In my view, a conditional appearance is not an appearance as that term is used in O 16. Under O 12 r 6(2) a conditional appearance becomes unconditional when an application to set aside the originating process is dismissed. This means the application for summary judgment can only be considered after an application to set aside the originating process has been heard and dismissed. Furthermore, any application for summary judgment made prior to determination of whether or not the originating process should be set aside is premature and must fail. In the result, then, the only question to be considered on this application is whether or not the originating summons ought be set aside for want of jurisdiction.

4 Before dealing with the jurisdiction question, I should say something of the facts of this case. They may be summarised in this way. The plaintiff was born on 11 June 1936. Her original birth certificates shows her parents as Gwendoline Rose Tetlow and Harold Gordon Gibson. The plaintiff claims that her natural father was the deceased. On 29 February 1952 an order was made in this Court whereby the plaintiff was adopted to Florence Catherine Rowan. Florence Catherine Rowan was the mother of the deceased. At the date the adoption was approved she was 77 years of age. The plaintiff was 15 years of age. The plaintiff says that throughout her life the deceased stood in the position of her father. The deceased died on 29 July 1999. The plaintiff has brought her application under s 6(1) of the Act claiming that she is a child of the deceased and therefore entitled to make a claim under the provisions of s 7(1)(c) of the Act.

5 Against the plaintiff's claim, the defendant, as executor of the will of the deceased, says three things. First, the plaintiff's birth certificate shows her mother's name as Florence Catherine Rowan. Florence Catherine Rowan is the mother of the deceased, meaning the plaintiff and the deceased are brother and sister. That being the case the plaintiff has no right to proceed under the Act. She is not among those class of persons included in s 7(1) of the Act. Secondly, the defendant says that, even if the plaintiff is the natural daughter of the deceased she was legally adopted by the deceased's mother. The effect of that in law is to render the deceased and the plaintiff brother and sister. Finally, it is said that when Florence Catherine Rowan died the plaintiff benefited from her estate equally with her other children, one of whom was the deceased. The defendant says it is now inconsistent with that benefit for the plaintiff to claim against the deceased's estate.

6 With respect to the defendant, in my view the entry of a conditional appearance in this case is misconceived. There is no doubt that this Court is seized with jurisdiction in relation to this application brought under the Act. The position might be different if, for instance, the deceased was resident in Victoria and probate of the will of the deceased was granted in that State. There would then be a real question of whether the Act would have any application and whether this Court could make any order pursuant to the Act. That is a straight jurisdictional question. In this case what the defendant is arguing is that the plaintiff does not fall within s 7(1)(c) of the Act. In one sense, if that argument succeeds it could be said that there is no jurisdiction to make an order under the Act. But such a conclusion calls for a determination as to whether or not on the facts the plaintiff fits within those categories of persons who are entitled to claim under the Act. This Court is entitled to make that determination because it has the jurisdiction to do so. When approached in that way it is clear this Court does have jurisdiction and the defendant's application must fail.

7 As I have indicated above, the defendant, having made application as is required by O 12 r 6(1) and that application having been dismissed, the appearance will become unconditional under r 6(2) unless the court orders to the contrary. I will hear the parties as to whether the appearance should become unconditional and what further orders should be made as to the disposition of this application. I will also hear the parties as to costs.