[1987] HCA 4
Twist v Randwick Municipal Council (1976) 136 CLR 106
Source
Original judgment source is linked above.
Catchwords
[1987] HCA 4
Twist v Randwick Municipal Council (1976) 136 CLR 106
Judgment (3 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
judgment
THE COURT: The applicant (Mr Van Gorp) seeks leave to appeal from orders made by Ward CJ in Eq (as her Honour then was) dismissing his application to set aside or vary consent orders made by Hallen J on 2 June 2021. Those orders gave effect to the final settlement of a family provision claim. Those proceedings concerned the 2018 will and estate of Mr Van Gorp's former wife, Kate Davy, who had died in July 2019.
At the time the proceedings were resolved the parties were Mr Van Gorp's younger daughter, referred to as "B", as plaintiff, by her tutor Ms McIntyre, a solicitor, and the executors of his former wife's estate, James Davy and Kimberley Evans. Mr Van Gorp had commenced those proceedings in his name in March 2020. When they were first mentioned before Hallen J on 6 April 2020 he acknowledged that he made no claim for himself to any interest in his former wife's estate and that he was not seeking any relief for himself. Rather he maintained he was seeking relief on behalf of his two daughters, both of whom were minors at the time the proceedings were commenced and accordingly under a legal incapacity. That continued to be the position in relation to the younger daughter, B, at the time the challenged consent orders were made on 2 June 2021; whereas the elder daughter, referred to as "A", had turned 18 in May 2020.
The consent orders made and matters noted by Hallen J in June 2021 were:
1 Orders that the settlement of the claim by the Plaintiff, who is a person under a legal incapacity (a minor) be approved pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW).
2 Notes that the tutor of the Plaintiff, who is a solicitor and an accredited specialist in Wills and Estates, as well as her legal advisers, including senior counsel, have considered the compromise and believe it to be beneficial to, and in the interests of, the Plaintiff.
3 Orders, pursuant to s 59 of the Succession Act 2006 (NSW) that, in lieu of the provision made for her in the Will dated 13 November 2018 of [the deceased], the Plaintiff receive, by way of provision, one-half of the property in the estate of the deceased and one-half of the property that is designated as notional estate of the deceased.
4 Orders that one-half of the value of the assets of the KLD-Turalla Settlement (of which the deceased was an appointor and sole trustee, and of which the Defendants are now appointors) be designated as notional estate of the deceased.
…
6 Orders, pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW) that the provision made for the Plaintiff out of the estate and notional estate of the deceased, be held on trust for the Plaintiff by the Defendants until the Plaintiff attains the age of 18 years or as she otherwise directs in writing after she attains the age of 18 years.
…
11 Notes that ["A"] … the only other person entitled to share the estate of the deceased, consents to these orders and notations.
…
On 12 November 2021, more than five months after the consent orders were made, Mr Van Gorp filed a notice of motion in the Succession List proceedings seeking orders that:
1. The consent orders made by the Court on 2 June 2021 be set aside and varied pursuant to rule 36.15(1) on the basis they were made irregularly and/or against good faith…
2. The consent orders be varied with the practical effect that the property and assets of the estate and notional estate be immediately placed in trust with the NSW Trustee & Guardian until ["B"] reached [sic] age 18 on […] 2022 and then the property and assets of the estate and notional estate be sold and the proceeds paid half each to ["B"] and ["A"], in cash, without any reduction for any repayment of alleged debts of the estate to any [of the deceased's] family member.
3. … [that] all costs incurred by the parties in the proceedings be paid by the real party opposing the relief sought in the proceedings, being the [deceased's] family personally, ie not as executors.
4. Sean Cornelius Van Gorp is permitted to apply for family provision from the estate pursuant to s 70 of the Succession Act 2006.
The primary judge dismissed that application with costs: Van Gorp v Davy [2022] NSWSC 39.
Mr Van Gorp requires leave to appeal from the primary judge's orders because they were interlocutory (Supreme Court Act 1970 (NSW), s 101(2)(e)). Generally speaking leave to appeal will not be granted unless the proposed appeal raises an issue of principle, a question of public importance or seeks to address a reasonably clear injustice going beyond something that is merely arguable.
The primary judge dismissed Mr Van Gorp's application on the basis that he did not have standing to set aside or vary the consent orders under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.15(1) and r 36.16. That relief was sought by paragraphs 1, 2 and 3 of the notice of motion (Judgment at [86]-[90]). Her Honour also held that paragraph 4 did not otherwise give Mr Van Gorp standing to make those claims. Any application under s 70 of the Succession Act 2006 (NSW) should have been brought by the commencement of a fresh proceeding, and the fact that such a proceeding might be brought by Mr Van Gorp did not give him standing to set aside or vary consent orders in family provision proceedings to which he was not a party and in which he had no direct interest (Judgment at [91], [120]).
Each of those conclusions was undoubtedly correct. Mr Van Gorp was not a party to the family provision proceedings at the time the consent orders were made and was not someone whose personal interests were in any way directly affected by the orders made in those proceedings.
Between May and September 2020 Mr Van Gorp had the benefit of legal representation in the underlying proceedings. In early June 2020, he filed a motion the effect of which was that he be appointed tutor for B, A having already turned 18. The deceased's sister, Lindsay Davy, also filed a motion seeking an order that she or some other person be appointed as tutor for B. Those applications were the subject of interlocutory consent orders made on 13 August 2020, which included an order that Ms McIntyre be appointed as tutor for B. Those consent orders also provided for the filing of an amended statement of claim, which named B as plaintiff by her tutor and did not name Mr Van Gorp as a party. That statement of claim was filed. Furthermore, on 18 September an order was made that he be removed as plaintiff and that B be substituted in his place. The elder daughter, A, was never a party to the proceedings.
On 30 October 2020, Mr Van Gorp, at this time representing himself, filed a motion seeking leave to "participate" in the proceedings as an intervener and that he be appointed co-tutor of B, and in the alternative that Ms McIntyre be removed and replaced by him. That motion was dismissed with costs on 18 December 2020. In later reasons delivered in relation to a costs order Hallen J noted that during the argument of that motion Mr Van Gorp acknowledged that he had "no interest in the estate of the deceased" (Van Gorp v Davy [2021] NSWSC 1509 at [32]).
In deciding whether the proposed settlement was in the best interests of B, Hallen J had regard to evidence of Ms McIntyre that she had obtained advice from senior counsel, Mr Ellison SC, that from B's perspective, the settlement involved a fair and reasonable compromise. Ms McIntyre also gave evidence that A had indicated to the executors that she did not wish to have any orders made in relation to her position as a beneficiary (Judgment at [25], [112]). The effect of that evidence was noted in paragraph 11 of the consent orders (set out in [3] above).
In his draft notice of appeal Mr Van Gorp proposes 24 grounds of appeal. Only one, ground 13, seeks to challenge her Honour's conclusion that Mr Van Gorp did not have standing to seek the relief in his notice of motion. That ground is:
13. The primary judge erred in reasoning that the appointment of a tutor extinguishes the power conferred by statute (the Guardianship of Infants Act) on a surviving parent as a guardian, and consequently that a surviving parent does not have a right to be heard in proceedings involving the interests of their minor child.
This ground does not advance Mr Van Gorp's position in relation to standing. It may be accepted that he continues to be a guardian of B, whilst she remains a minor. However, neither of ss 13 or 17 of the Guardianship of Infants Act 1916 (NSW) confers any right upon a guardian to set aside consent orders made in proceedings carried on by a validly appointed tutor acting in accordance with UCPR r 7.14.
In oral argument Mr Van Gorp relied upon the general principle that courts and administrative agencies having power to affect the rights of a person should give the person the opportunity to be heard before exercising the power. He referred to statements by Barwick CJ in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109-110; [1976] HCA 58, and Brennan J in J v Lieschke (1987) 162 CLR 447; [1987] HCA 4, the latter dealing with the exercise of a statutory power to make orders removing children from the custody and control of a parent or parents.
Mr Van Gorp contended that applying this principle, he had a right to be heard on his application to set aside the consent orders, notwithstanding that he was not a party to the proceedings and that those orders did not directly affect his rights or interests. He claimed that he was seeking to protect the interests of his younger daughter, B, in the succession proceedings. However, where a guardian ad litem or a tutor has been appointed by a court of competent jurisdiction for the purpose of conducting non-criminal proceedings on behalf of a child, any right of the parents to appoint solicitors or give instructions on behalf of the child is subject to the appointment of the tutor and the authority which that conferred on the tutor. See the observations of Brennan J in Lieschke at 455.
As the primary judge observed at Judgment [87], Mr Van Gorp was not a proper party in his own right to the succession proceedings as initially constituted. To act on his daughter B's behalf, whilst she was a minor, Mr Van Gorp was required to be appointed as a tutor. He made such an application in the underlying proceedings at a time when he had the benefit of legal assistance. That application was resolved by the appointment of Ms McIntyre. He also subsequently and unsuccessfully applied to have Ms McIntyre removed as B's tutor.
Mr Van Gorp's lack of standing provided a sufficient basis for her Honour's order dismissing the claims for relief in prayers 1 to 3 of the notice of motion. Her Honour also observed that if Mr Van Gorp had standing to challenge the consent orders for reason of fraud it would have been necessary to do so in separate proceedings in which the alleged fraud was clearly particularised (Judgment at [103]). That observation was also correct and provided an additional reason for dismissing the claims for relief in prayers 1 to 3.
It remains to consider prayer 4 by which Mr Van Gorp sought to apply for a family provision order out of the deceased's estate pursuant to Succession Act, s 70. That section confers a power to vary or revoke a family provision order "so as to allow provision to be made in favour of another eligible person wholly or partly from all or any property affected by the order". As the primary judge concluded at Judgment [91] and [120] any such application had to be made in separate proceedings. Furthermore, the fact that an order may be made in such a proceeding which has the effect of varying or revoking an existing family provision order does not entitle such an applicant to seek relief under UCPR rr 36.15, 36.16 in relation to the existing family provision order.
For these reasons, the application for leave to appeal should be dismissed with costs.
On 20 June 2022 Mr Van Gorp filed a notice of motion in this Court seeking orders for the joinder of Dimity Davy, Lindsay Davy and James Davy, the latter presumably in his personal capacity rather than as an executor of the deceased's estate, in each case as parties to the application for leave to appeal. UCPR r 51.4(1) provides that in proceedings to which Part 51 applies each person who is directly affected by relief sought or interested in maintaining the decision of the court below should be joined as a respondent.
Each of these persons was directly affected by the relief sought in paragraph 3 of Mr Van Gorp's motion before the primary judge. That relief was that notwithstanding that they were not parties to the underlying proceedings they pay "all costs incurred by the parties".
However, Mr Van Gorp had no standing to seek that relief. As the application for leave to appeal is to be dismissed, there is no purpose or utility in the joinder of any of these persons as parties at this late stage of the proceedings. The notice of motion filed on 20 June 2022 should be dismissed.
The Court makes the following orders:
1. Dismiss summons seeking leave to appeal.
2. Dismiss notice of motion filed 20 June 2022.
3. Order the applicant to pay the respondents' costs of the proceedings.
[3]
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Decision last updated: 06 July 2022