On 6 December 2018, I published reasons for judgment in these proceedings: see Weisbord v Rodny; Rodney v Weisbord [2018] NSWSC 1866.
The proceedings raised two principal issues. The first was whether the Court should make an order under s 8 of the Succession Act 2006 (NSW) that a particular document formed the will of Mrs Rose Rodny, who was the mother of the first plaintiff and the defendant, notwithstanding that the document had not been executed in accordance with Part 2.1 of the Succession Act. The second issue was whether the Court should make further provision for the plaintiffs out of the estate of Mrs Rodney under s 59 of the Succession Act.
In the judgment, I found in favour of the plaintiffs on the first issue. The consequence was that the will of Mrs Rodney made provision for the plaintiffs that obviated their need to pursue the application for further family provision. In their submissions, the plaintiffs had specifically stated that their applications for family provision orders were in the alternative to their claim based upon s 8 of the Succession Act.
As I found in favour of the plaintiffs on the first issue, I did not determine the second issue. It is often convenient where a trial judge finds in favour of a party on one issue for the judge to then determine alternative issues that do not strictly arise given the primary finding. That is often convenient because the alternative issues will be determined when they are fresh in the judge's mind, and will facilitate the final determination of the dispute if it happens that an appeal against the judge's finding on the first issue is upheld.
I did not follow this course in the present case because the family provision applications were true alternatives to the claim upon which the plaintiffs succeeded, and those applications were highly contentious and raised complex issues of fact for determination by the Court. The benefit in determining the alternative issues following my finding in favour of the plaintiffs on the first issue did not outweigh the cost to the Court's time and resources in the circumstances. The determination of the family provision applications will be an arduous exercise.
Furthermore, I considered the factual questions relevant to the first issue to be highly contentious. There was a significant range of findings that could have been made by the Court in relation to the facts relevant to the first issue and consequently the second issue. The family provision applications were therefore not simply in the alternative, and the effort involved in determining those applications could miscarry if the Court proceeded on a basis that was subsequently undermined by any judgment on appeal.
As it has happened, the primary judgment was appealed. The Court of Appeal allowed the defendant's appeal against my finding on the first issue, and made an order setting aside my order giving effect to the document as Mrs Rodney's will under s 8 of the Succession Act: see Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22. The Court of Appeal also remitted the proceedings to me to make a determination of the plaintiffs' family provision applications.
The need for these reasons arises out of the fact that, when the proceedings were listed before me for directions on 2 March 2021, the defendant sought directions for the further conduct of the proceedings in order to enable the parties to serve further updating evidence of matters relevant to the applications for further family provision that had occurred after I published my initial judgment.
This course was opposed by the plaintiffs, whose position was that the Court should now deliver its judgment on the family provision applications on the basis of the evidence that was before the Court when it published its initial judgment.
The defendant provided written submissions on this issue on 9 March 2021, the plaintiffs responded on 16 March 2021, and the defendant delivered a brief reply on 22 March 2021. The Court heard brief oral submissions on 23 March 2021.
It is appropriate to commence the consideration of this issue by noting that the plaintiffs' family provision applications were fully contested in the hearing up to the time that the Court reserved its initial judgment.
There was no consideration at the hearing about whether or not the Court should deal with the family provision applications if it found in favour of the plaintiffs on the first issue that arose under s 8 of the Succession Act. I made the decision after having reserved judgment that the balance of convenience favoured the Court not determining the family provision applications.
I will add that in making that decision I took for granted that if I was subsequently required to determine the family provision applications, that is an exercise that would be carried out on the basis of the evidence that was before the Court when it reserved judgment.
In essence, the defendant's application for case management orders that would give the parties an opportunity to serve further updating evidence was based solely on that part of s 59(2) of the Succession Act that authorises the Court to make an order for provision out of the estate of the deceased person "having regard to the facts known to the Court at the time the order is made".
The defendant relied upon the fact that the primary judgment was delivered on 6 December 2018 and the judgment on appeal was handed down on 27 February 2020. The defendant submitted that the first instance judgment on the plaintiffs' family provision applications will now be delivered so long after the Court first reserved judgment that the wording of s 59(2) of the Succession Act requires that the parties be given an opportunity to serve updating evidence.
The defendant has not made an application to reopen his case.
Nor has the defendant provided any evidence to the Court as to the general nature of any updating evidence that the defendant contends should be placed before the Court to enable it to make a proper judgment on the plaintiffs' family provision applications.
Consistently with the submissions made on behalf of the plaintiffs, I propose to reject the defendant's application, and to decide the plaintiffs' family provision applications on the basis of the evidence that was before the Court when it initially reserved judgment.
I consider that on the proper interpretation of s 59(2) of the Succession Act, the expression "the facts known to the Court at the time the order is made" must mean at the time that the Court reserves judgment on the hearing of the application, not the later time when the Court actually makes the order following the delivery of judgment.
Except in the rare cases when the Court is able to deliver an ex tempore judgment, judgment will be handed down some time after it has been reserved, and in complicated cases that may be a considerable time after the reservation of judgment. Section 59(2) of the Succession Act cannot in reality mean the time when the order is made, because that would be to adopt an interpretation of the statutory provision that would make its proper operation impossible in many cases.
Furthermore, the practical absurdity would arise where, between the initial reservation of judgment and the making of an order following judgment, it would be open to a party, in the same manner as the defendant seeks to do now, to apply to the Court for case management orders to enable that party to serve further updating evidence. If s 59(2) of the Succession Act required the Court to have regard to the facts known to the Court at the time the order is made, in the sense contended for by the defendant, there would be no basis for the Court to resist the application. Further, after the Court had received the updating evidence, and again reserved judgment, the same type of application could be made in the period that the judgment was reserved.
In my view, the true answer to the defendant's application is that, where s 59(2) of the Succession Act refers to "the facts known to the Court at the time the order is made", those facts will necessarily be the facts known at the time judgment is reserved, because the Court's procedure excludes the possibility that new facts will become known during the period judgment is reserved, in the absence of a successful application by a party to reopen their case.
The same considerations apply to s 59(1)(c) of the Succession Act in so far as it requires the Court to determine "at the time when the Court is considering the application" whether "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person".
If I had taken a different course and proceeded to determine the plaintiffs' family provision applications at the same time as I determined their application for the making of an order under s 8 of the Succession Act, then there is no doubt that the family provision application would have been determined on the basis of the facts established by the evidence that was before the Court when it reserved judgment. It would be unjust for the plaintiffs' family provision applications to be made dependent upon a choice made by the Court as to when to determine those applications in the circumstances that I have explained above. As a matter of fairness, there should be only one outcome of the plaintiffs' family provision applications irrespective of when the Court makes its determination.
The practical arguments put by the plaintiffs in support of their contention also carry weight. The plaintiffs noted that the defendant had not suggested that any particular changes in circumstances had occurred that were so significant as to create possible injustice if the Court determined the plaintiffs' family provision applications in ignorance of knowledge of those facts. The defendant had left open the question of whether a further hearing and cross-examination of witnesses would be required following the service of the updating evidence. The plaintiffs put forward evidence at the hearing of the psychological difficulties from which they suffer, and they submitted that they should not be subjected to the doubts and anxieties, as well as the costs, that would follow if the Court made open-ended case management orders that permitted the defendant to serve evidence as to events that have occurred after the Court first reserved judgment.
It will therefore be appropriate for the Court to consider that its judgment is still reserved on the plaintiffs' family provision applications and to give judgment on those applications in due course on the basis of the evidence that was tendered at the hearing.
For the purpose of determining the plaintiffs' applications for further family provision, I will be assisted if the parties provide further written submissions on the following issue.
In my primary judgment, I found in favour of the plaintiffs on the application based on s 8 of the Succession Act on the basis of various findings of fact concerning the intentions and state of mind of the deceased. Had I dealt with the plaintiffs' applications for further family provision in the primary judgment, I would have done so on the basis of the facts that I found in dealing with the first issue. Those findings would have influenced my process of reasoning in considering the factors that the Court is required to take into account in the application of s 59 of the Succession Act. There is now in principle a question about whether, and if so in what respects, the reasoning of the Court of Appeal should influence the Court's determination of the family provision applications. It will not be conducive to the just, quick and cheap resolution of those applications if I proceed on a basis that is inconsistent with the reasoning of the Court of Appeal. This issue may go further than the question of whether the Court of Appeal held that I had made errors in the fact-finding process in the primary judgment, and may extend to whether the reasons why the Court of Appeal held that the requirements of s 8 of the Succession Act were not satisfied should now influence the application of s 59 of that Act.
I invite the parties to consult on this question and agree a timetable for providing additional submissions on the issue that I have raised. If the parties, or either of them, wish to take a different course, or to receive further guidance concerning the assistance that the Court hopes to gain from the further submissions, they are invited to arrange a directions hearing with my Associate.
In the circumstances, there is no application before the Court that requires the Court to make any formal order at this time.
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Decision last updated: 03 May 2021