SCHMIDT -v- MALCOLM [2016] WASC 209 (6 July 2016)

(a) the discretion is unfettered and is to be exercised judicially in accordance with what is just and proper;

(b) the plaintiff bears the onus of establishing sufficient grounds for taking the course out of the general rule, and this includes establishing there is an arguable case on the merits;

(c) how promptly and in what circumstances the plaintiff sought an extension of time including an explanation for the delay;

(d) whether negotiations have commenced within or outside the time limit;

(e) whether the estate has been distributed before the claim was made; and

(f) whether a refusal to extend time would leave the plaintiff without redress against anybody.

4 As the submissions were framed there were really two matters which were contested. First, it was said there was not an adequate explanation for the delay in bringing the proceedings. Second, it was said there was not sufficient evidence to establish the plaintiff was the de facto partner of the deceased. That being so there was no arguable case and it was not in the interests of justice to grant the extension of time sought.

5 In support of her application the plaintiff relied on her affidavit sworn 21 September 2015. At pars 152 166 of that affidavit the plaintiff sets out what she says are the reasons for the delay. The plaintiff's position can be summarised in this way. In June 2014 her solicitor wrote to the executor of the deceased's estate twice identifying the plaintiff as the deceased's de facto partner and asking for a copy of the deceased's death certificate, his will and any grant of probate. In July 2014 the solicitors for the executor confirmed they disputed the plaintiff's claim to being the deceased's de facto partner and confirmed that an application for probate in Western Australia had not yet been made.

6 On 23 October 2014 the executor's solicitors provided the plaintiff's solicitors with a copy of the deceased's will and the grant of probate. This was done some two weeks after probate was granted. During November and December 2014 counsel's opinion was sought as to whether or not the plaintiff might be regarded as the deceased's de facto partner. As a result of counsel's opinion further information was required. It took until June 2015 before the information was available. At that point the plaintiff's solicitors reverted to counsel for a final opinion as to the plaintiff's claim.

7 Consequent upon that opinion the plaintiff determined to make an application. She then needed to serve the application out of the jurisdiction and in South Africa. It would appear the plaintiff's solicitors took the view it was necessary to obtain leave to issue the application and to serve the application outside the jurisdiction. This resulted in some further delay. Counsel for the first defendant acknowledged, quite properly, that if the approach adopted by the plaintiff's solicitor amounted to a procedural error that should not be held against the plaintiff.

8 In all the circumstances I was satisfied the delay in this matter had been explained. It is clear, as I will indicate below, this is an unusual de facto relationship - if it is a de facto relationship at all. It clearly would have been unwise to issue proceedings without fully investigating the claim the deceased was the plaintiff's de facto partner. In any event the plaintiff was taking counsel's advice and obviously acted in accordance with that advice. It is difficult to see how she can be criticised for doing so. True it is the investigations took some time but that is only to be expected. In my view there is every reason to accept the delay is fully explained.

9 Turning then to the claim of a de facto relationship. Section 13A(1) of the Interpretation Act 1984 (WA) requires unmarried couples to live together in a marriagelike relationship to be considered de facto. A 'marriagelike relationship' has no formality surrounding its creation or cessation. The decision is a judicial one having regard to the factors in s 13A(2) of the Interpretation Act: see H v P [2011] WASCA 78 (Murphy JA). No standard objective tests exists against which a purported de facto relationship can be compared to a marriage relationship. De facto relationships are as diverse as marriages.

10 Section 13A of the Interpretation Act identifies indicators as to whether or not a de facto relationship exists. Each indicator is not essential nor is the listing exclusive. The indicators include:

(a) the length of the relationship between them;

(b) whether the 2 persons have resided together;

(c) the nature and extent of common residence;

(d) whether there is, or has been, a sexual relationship between them;

(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(f) the ownership, use and acquisition of their property (including property they own individually);

(g) the degree of mutual commitment by them to a shared life;

(h) whether they care for and support children;

(i) the reputation, and public aspects, of the relationship between them.

11 Section 13A(3)(b) of the Interpretation Act provides that it does not matter if either of the persons are legally married to or in another de facto relationship with someone else. To decide whether a couple are or were in a marriagelike relationship a decisionmaker must have regard to their interpersonal relationship as a whole and is not limited by the statutory factors.

12 On behalf of the defendants a number of points were made. First, the plaintiff and the deceased did not share a common residence. The deceased resided in South Africa with his de facto partner. Second, the deceased recorded his residential address as 91 Ascot Ride, Saddlebrook Estate, Kyalami, South Africa. Third, while the deceased did spend time intermittently in Perth with the plaintiff as part of his work as a pilot for South African Airways it could not in any way be said he was a resident of Australia. Fourth, aside from gifts to the plaintiff there as no apparent ongoing or regular financial support or household sharing arrangements. The plaintiff is an independent selfsufficient person who takes care of her one dependent son - a child from a previous marriage. Fifth, while the plaintiff and the deceased jointly owned a property located in Beaconsfield it was owned as tenants in common rather than as joint tenants. The first defendant says the evidence shows the property was an investment property and was not intended as a common abode. Sixth, the first defendant says the evidence does not establish there was a genuine degree of mutual commitment to a shared life, at least on the part of the deceased. In opposition to the application the third defendant filed an affidavit sworn 15 March 2016. She claims the deceased was in a committed de facto relationship with her. Finally, the plaintiff and the deceased had no children.

13 A great deal of evidence was led by the plaintiff dealing with the issue of whether or not she was in a de facto relationship. It is unnecessary for present purposes for me to go through that evidence. At this stage all I have to determine is whether or not there is an arguable case. As Malcolm CJ pointed out in Clayton v Aust it is not necessary to determine whether the case is strong or weak. If it is arguable that is sufficient. The same test as applies to a summary judgment application should be applied to this question.

14 On balance I am satisfied the plaintiff does have an arguable case. She clearly had a relationship with the deceased which extended over many years and appears to have involved a degree of commitment on both sides. As I said above it was an unusual arrangement but that does not mean there could not be a finding there was a de facto relationship. The fact that they owned property together, while not necessarily determinative of the issue, shows a degree of commitment to one another which taken together with other factors may be sufficient to establish there was a de facto relationship.

15 For these reasons I indicated to the parties that I would extend time within which the plaintiff can commence proceedings. She will have 21 days from the date of publication of these reasons to file the application. The costs of the application for leave should be costs in the main proceedings.