AGATA BRYGIDA KARBOWIAK v MARIA MITOLO [2024] SASCA 31

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE STANLEY) CIV-22-009885 First Appellant: AGATA BRYGIDA KARBOWIAK Counsel: MR S OWER KC WITH MR E GUTHRIE - Solicitor: DONLAN LAWYERS Second Appellant: ALAN DAVID KARBOWIAK Counsel: MR S OWER KC WITH MR E GUTHRIE - Solicitor: DONLAN LAWYERS First Respondent: MARIA MITOLO No Attendance Second Respondent: MARIA MITOLO Counsel: MR T COX KC WITH MR M TAYLOR - Solicitor: CARPENTER & ASSOCIATES Hearing Date/s: 15/03/2024 File No/s: CIV-23-014805 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. KARBOWIAK v MITOLO [2024] SASCA 31 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby) 21 March 2024 SUCCESSION - ADMINISTRATION OF ESTATE - OTHER MATTERS The applicants seek leave to appeal an order for a separate trial in a proceeding concerning the estate of Mr Mitolo, who died intestate. The first applicant seeks a declaration that she was the domestic partner of the deceased under the Family Relationships Act 1975 (SA), in addition to an order for provision out of the estate under the Inheritance (Family Provision) Act 1972 (SA). The second applicant, the first applicant’s biological son, claims to be an ‘eligible applicant’ under the Inheritance (Family Provision) Act 1972 (SA). The first respondent is the deceased’s mother in her capacity as administrator of the estate, and she is the second respondent in her own right as the deceased’s mother and beneficiary. In June 2023 the respondent filed an application that the first applicant’s claim for a declaration under the Family Relationships Act 1975 (SA) be heard as a separate trial to any trial concerning orders for provision out of the estate. There appears to be an issue about the valuation of the estate assets and liabilities. Over the opposition of the applicants, the application was granted and orders were made to facilitate the separate trial. There are four broad appeal grounds: 1. The applicants’ contention that the primary judge did not engage with their case, failed to give the matter proper judicial consideration and failed to give adequate reasons because the judge -- 1 of 15 -- reproduced verbatim, without attribution, passages from the respondent’s written submissions. 2. The primary judge failed to take into account or give any weight to various of the applicants’ contentions. 3. The primary judge took into account and accepted, uncritically, various contentions advanced by the respondent which were “either irrelevant, unsupported by evidence, or, to the extent that they were matters of an evaluative judgment … perverse or irrational”. 4. The primary judge erred in his construction of s 14(2) of the Family Relationships Act 1975 (SA). HELD (the Court) refusing leave to appeal, with costs: 1. The proposed appeal concerns a matter of practice and procedure and this Court will give deference to the decision made by the primary judge and exercise particular caution before granting leave and intervening on appeal. 2. The determination made by the judge was, ultimately, not one that required extended analysis, nor lengthy or complex reasons. The judge was not required to refer to all of the submissions made by the parties and, so long as their key submissions were addressed and the reasoning in support of the decision made clear on a reading of the reasons as a whole, there can be no complaint about a degree of copying. 3. Section 14(2) of the Family Relationships Act 1975 (SA) comprises a statutory direction that there will be a separate trial of any issues arising under that Act “unless a Court otherwise determines”. 4. It was neither irrational nor wrong to conclude that proceeding first with a Family Relationships Act 1975 (SA) declaration in the circumstances of this case is likely to save substantial costs in this matter. 5. Broadly, the proposed appeal grounds lack merit. It has not been demonstrated that material error has been made in connection with the exercise of the discretion to proceed by way of separate trial. Even if there was arguable error, it has not been demonstrated that allowing the decision to stand will work any substantial injustice to the applicants. Administration and Probate Act 1919 (SA) ss 72G, 72N; Family Law Act 1975 (Cth) s 4AA; Family Relationships Act 1975 (SA) ss 11A, 14; Inheritance (Family Provision) Act 1972 (SA) ss 6(g), 7; Uniform Civil Rules 2020 (SA) r 213.1, referred to. Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC [2008] SASC 369; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Amaca Pty Ltd v Werfel (2020) 138 SASR 295; Clayton v Clayton [2023] NSWSC 399; Cojocaru v British Columbia Women’s Hospital and Health Care [2013] 2 SCR 357; Collins v Djunaedi [2023] SASCA 97; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; DL v The Queen (2018) 266 CLR 1; Estate of Awad [2023] NSWSC 765; Estate of Kranjac; Cadden v Widdowson [2018] NSWSC 285; Fairbairn v Radecki (2022) 275 CLR 400; Ferraretto and Snappy Apple Pty Ltd v Cowell Clarke [2012] SASC 224; Harris Scarfe Ltd (In liq) v Ernst & Young (No 2) [2005] SASC 168; House v The King (1936) 55 CLR 499; Hunter v Transport Accident Commission (2005) 43 MVR 130; Karbowiak v Mitolo [2023] SASC 168; Kelbush Pty Ltd v Australian and New Zealand Banking Group Ltd [2016] WASCA 14 (S); Li v Attorney General for New South Wales (2018) 99 NSWLR 630; Liberty Financial Pty Ltd v Scott [2003] FCA 226; McDonald v Attorney-General for the State of South Australia [2022] SASCA 43; SA Water Corporation v United Water International Pty Ltd [2009] SASC 383; Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2023] WASCA 45; Tepko Pty Ltd v The Water Board [2001] 206 CLR 1; Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130; Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247; Whalan v Kogarah Municipal Council [2007] NSWCA 5, considered. -- 2 of 15 -- KARBOWIAK v MITOLO [2024] SASCA 31 Court of Appeal – Civil: Livesey P, Doyle & Bleby JJA THE COURT: Introduction 1 The applicants seek leave to appeal1 an order for a separate trial in a proceeding concerning the estate of Mr Maurizio Mimmo Mitolo, who died intestate on 18 December 2019 (the deceased). 2 The first applicant, Ms Agata Karbowiak, seeks a declaration that she was the domestic partner of the deceased under the Family Relationships Act 1975 (SA) (the FRA) as well as an order for provision out of the estate pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) (the IFPA). 3 The second applicant, Alan Karbowiak, is the son of the first applicant and he claims to be an “eligible applicant” within the meaning of s 6(g) of the IFPA. On this basis, he also seeks an order for provision out of the estate pursuant to s 7 of the IFPA. 4 Ms Maria Mitolo is the first respondent in her capacity as administrator of the deceased’s estate, and the second respondent in her own right as the deceased’s mother and beneficiary. As the deceased is not survived by any other spouse or child she is ostensibly entitled to his entire estate on an intestacy under s 72G of the Administration and Probate Act 1919 (SA). She defends this application for leave to appeal in her second capacity and it is convenient to refer to her as the respondent. 5 On 7 June 2023, the respondent filed an application that the first applicant’s claim for a declaration under the FRA be heard as a separate trial. Over the opposition of the applicants, the primary judge granted that application and made orders which included an order for trial. Initially that trial was set for early March, but it is now set for 15 April 2024. The parties have made discovery and the documents they have produced have been inspected. A tender book has been agreed. The first applicant has filed and served her witness statements and the respondent’s statements were due on 15 March 2024, the day of the hearing of this appeal. 6 No application for an urgent hearing of the appeal has been made. Disposition of the application for permission to appeal 7 The proposed appeal concerns a matter of practice and procedure. Accordingly, this Court will usually give deference to the decision made by the 1 Uniform Civil Rules 2020 (SA), r 213.1(1)(a). -- 3 of 15 -- [2024] SASCA 31 The Court 2 primary judge and exercise particular caution before granting leave and intervening on appeal.2 Indeed, it has been suggested that not all infractions of a party’s procedural rights warrant the grant of leave to appeal because it is necessary to demonstrate that the effect of the order goes beyond mere inconvenience and procedural disadvantage.3 8 As will be seen, in broad terms, the applicants have not demonstrated that material error of the kind recognised in House v The King has been made in connection with the exercise of the discretion to proceed by way of separate trials.4 Perhaps more importantly, even if it were thought there might be arguable error it has not been demonstrated that allowing the decision to stand will work any substantial injustice to the applicants.5 9 Accordingly, leave to appeal should be refused. Relevant background and contentions 10 The evidence of the first applicant is to the effect that she was in a genuine domestic relationship with the deceased but that they did not “live together as a couple” after May 2012, more than seven years before the deceased’s death. 11 The respondent is 90 years of age, and it is agreed that she will be replaced as administrator. For her part, the respondent accepts that the first applicant and the deceased were in a relationship for a time, though she thought that it ended in 2012. She lived opposite the deceased and believed he lived there on his own during the last six years of his life. She has also deposed to the belief that the first applicant entered into another relationship with another member of the respondent’s family and was residing with him from around 2017. 12 As there appears to be a contest between the parties over whether the first applicant and the deceased were in domestic relationship at the date of his death, as the first applicant claims, or possibly only much earlier, as the respondent allows, there is likely to be a contest between the parties as to whether and from when the first applicant satisfies the requirements of s 11A(b)(i)(A) or (B) of the FRA: A person is, on a certain date, the “domestic partner” of another if— … 2 Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177-178 (Gibbs CJ, Aickin, Wilson and Brennan JJ); McDonald v Attorney-General for the State of South Australia [2022] SASCA 43, [21]-[22] (Livesey P and Bleby JA), citing Harris Scarfe Ltd (In liq) v Ernst & Young (No 2) [2005] SASC 168, [14] (Bleby J). 3 Kelbush Pty Ltd v Australian and New Zealand Banking Group Ltd [2016] WASCA 14 (S) (Martin CJ, with whom Buss JA and Mitchell J agreed); Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2023] WASCA 45, [45]-[46] (Murphy, Mitchell and Beech JJA). 4 House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ). 5 Cf Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-399; Collins v Djunaedi [2023] SASCA 97, [32] (Doyle and Bleby JJA). -- 4 of 15 -- [2024] SASCA 31 The Court 3 (b) the person is, on that date, living with the other in a close personal relationship and— (i) the person— (A) has so lived with the other continuously for the period of 3 years immediately preceding that date; or (B) has during the period of 4 years immediately preceding that date so lived with the other for periods aggregating not less than 3 years … 13 As to this, the first applicant relied on the relatively recent observations of the High Court in Fairbairn v Radecki concerning the breadth of the concept of “living together” within s 4AA of the Family Law Act 1975 (Cth) namely, that:6 Living together … will often, perhaps usually, mean cohabitation of some residence by a couple for some period ... But cohabitation of a residence or residences is not a necessary feature of “living together”. That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. … … “Living together”, consistently with authority, should be construed as meaning sharing life as a couple. [citations omitted] 14 There is, in addition, an issue between the parties as to whether the second applicant qualifies if his mother was not the deceased’s domestic partner at the date of the deceased’s death. That turns on the proper meaning of s 6(g) of the IFPA: (g) A child of a … domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death. 15 The applicants contended that it would be sufficient for the second applicant to demonstrate that the first applicant was the “domestic partner” of the deceased at the date of death “or at some earlier date”,7 and that the second applicant was at least partially dependent on the deceased at the date of death. By contrast, the respondent contended that the second applicant cannot make a claim unless it is established that the first applicant was the domestic partner of the deceased at the date of death. 16 For the purposes of this application for leave to appeal, it is not necessary to resolve that issue save to observe that the applicants contended that the primary judge did not engage with it, instead proceeding on the basis that the outcome of 6 Fairbairn v Radecki (2022) 275 CLR 400, [33], [39] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ). 7 See the definition of “domestic partner” in s 4 of the Inheritance (Family Provision) Act 1972 (SA). -- 5 of 15 -- [2024] SASCA 31 The Court 4 the trial may be that the first applicant will either be declared the domestic partner of the deceased at the date of his death, or not at all.8 17 Before the primary judge there was a third applicant, Mr Paul Mitolo, who made a claim under the IFPA in his capacity as the brother of the deceased who contributed to the deceased’s maintenance during his lifetime. That claim was summarily dismissed, albeit on the basis that it was open to Paul Mitolo to bring another claim.9 18 An important dispute between the parties concerned whether and to what extent it was necessary for the deceased’s estate to be valued. The applicants contended that the ordinary procedural processes should be followed so that they can determine whether the estate is or is not solvent and, accordingly, whether “the game is worth the candle”. This, contended the applicants, will assist settlement, including by way of mediation. 19 The respondent countered that the likely expense and delay associated with valuing the assets and liabilities of this estate will be wasted if the first applicant cannot demonstrate that she was the domestic partner of the deceased at a relevant time. In that event, proceeding other than by way of separate trials will only increase the prospect that the applicants will secure “go away money”, expended by the respondent in order to avoid the time and cost associated with complex proceedings. 20 The estate appears to comprise around nine parcels of land with a value of some millions, seven parcels of shares in private companies connected with the Mitolo family worth some hundreds of thousands of dollars and, importantly, significant liabilities. The deceased had guaranteed various loan facilities taken out by third parties which may have totalled just under $5 million, together with other liabilities under mortgages and other loans. 21 The solicitors for the respondent in her capacity as administrator have put forward various valuations which are not agreed. According to the respondent, the first applicant is “eager to dispute the values put on the estate assets”, as demonstrated by her having already sought third party discovery from some 12 companies and trusts. The respondent contends that the costs and delay associated with valuation should remain “an internal affair of the Mitolo family” unless the first applicant can demonstrate her capacity to bring a claim under the IFPA. Valuing the third-party liabilities, in particular, is likely to prove both complex and time consuming. 22 The applicants countered that it is too early to proceed to a trial on any issue, especially as it is not yet clear that there will be disputes about the valuation of the assets and liabilities of the estate. 8 Karbowiak v Mitolo [2023] SASC 168, [29]-[30]. 9 Karbowiak v Mitolo [2023] SASC 168, [49]. -- 6 of 15 -- [2024] SASCA 31 The Court 5 The proposed appeal grounds 23 There are, broadly, four proposed grounds of appeal, each with numerous particulars. In outline: 1. The applicants contend that the primary judge did not engage with their case, failed to give the matter proper judicial consideration and failed to give adequate reasons because the judge reproduced without attribution, verbatim, passages from the respondent’s written submissions. Six paragraphs from the judgment are mentioned.10 2. Further or alternatively, the primary judge failed to take into account or give any weight to various of the applicants’ contentions. 3. The primary judge took into account and accepted uncritically various contentions advanced by the respondent which were “either irrelevant, unsupported by evidence or, to the extent that they were matters of an evaluative judgment … perverse or irrational”. 4. The primary judge erred in his construction of s 14(2) of the FRA. 24 It is convenient to commence with proposed appeal ground four. Appeal ground 4: s 14(2) of the Family Relationships Act 1975 (SA) 25 There is no dispute between the parties that whether the first applicant can demonstrate that she was the deceased’s domestic partner at a relevant time is key to this proceeding. Absent the establishment of this jurisdictional fact the court has no jurisdiction to make any order for provision in favour of either applicant.11 26 The proper meaning and effect of s 14(2) of the FRA represents a significant point of dispute between the parties concerning whether a separate trial should have been ordered. Section 14 of the FRA provides: (1) Where— (a) a person desires to institute proceedings in a court; and (b) it is necessary for the purposes of those proceedings to establish under this Act that a certain relationship exists, he may commence the proceedings in the usual way, but he must endorse on the process by which the proceedings are instituted a statement to the effect that he seeks a declaration under this Act of a specified relationship. 10 Karbowiak v Mitolo [2023] SASC 168, [26]-[27], [28], [29], [30] and [31]. 11 Clayton v Clayton [2023] NSWSC 399, [98]-[99], the applicant has the onus of establishing “the threshold jurisdictional issues in relation to eligibility”. See also Estate of Awad [2023] NSWSC 765, [68] (Lindsay J); Estate of Kranjac; Cadden v Widdowson [2018] NSWSC 285, [28] (Lindsay J). -- 7 of 15 -- [2024] SASCA 31 The Court 6 (2) In any such proceedings, there shall be, unless a court otherwise determines, a separate trial of any issues arising under this Act. 27 The respondent contended before the primary judge, and the primary judge accepted, that s 14(2) created a form of statutory presumption or default rule which applied unless a party persuaded the court that it should not apply. 28 The respondent also contended that, not only is the requisite declaration a jurisdictional fact necessary for any IFPA claim to be made in this case, but the outcome on that issue will also determine who takes on intestacy. It will determine who should be the proper administrator of the intestate estate. If the first applicant is demonstrated to be the domestic partner of the deceased at the date of his death, she will become the only claimant as the de facto spouse of the intestate deceased and the appropriate administrator of the estate.12 29 The respondent called in aid examples of separate trials being ordered in circumstances similar to this case, whether in this jurisdiction or elsewhere. 30 The applicants observed that s 14(2) of the FRA is often overlooked and appears to reverse what is the usual starting point,13 or general rule,14 that all issues should be dealt with in a single trial. 31 The applicants referred to the curiosity in this case that it was the respondent, not them, who applied for an order for separate trials. By reason of s 14(2) of the FRA the respondent’s application was unnecessary. If the applicants wanted a single trial, it was necessary for them to make the requisite application. 32 In the event, the applicants contended that, whoever made the application, the relevant considerations and the exercise of discretion should be guided by those cases which address whether to order separate trials. The applicants contended that there is nothing in the language of s 14(2) of the FRA that creates any statutory or presumptive entitlement and, accordingly, in finding otherwise the primary judge erred. 33 Whether s 14(2) is more accurately described as creating a statutory presumption that there will be a separate trial when the terms of s 14(1) are established,15 or as merely identifying a starting position, does not much matter. Probably, it is the latter. The statutory direction is that there will be a separate trial of any issues arising under the FRA “unless a Court otherwise determines” under s 14(2). Moreover, when exercising the discretion conferred by s 14(2), the court should take the statutory direction, together with the reasons for it, into account as relevant but not determinative considerations. 12 Administration and Probate Act 1919 (SA), s 72G(1)(a), but see s 72N. 13 SA Water Corporation v United Water International Pty Ltd [2009] SASC 383, [46] (Anderson J). 14 Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC [2008] SASC 369, [93] (White J, with whom Kelly J agreed). 15 Karbowiak v Mitolo [2023] SASC 168, [19]. -- 8 of 15 -- [2024] SASCA 31 The Court 7 34 Though the starting point under s 14(2) of the FRA is different to the general rule that all issues should be dealt with in a single trial, it cannot be said that the relevant principles and considerations which must be taken into account in the exercise of the court’s discretion are otherwise materially different. That is to say, apart from the qualification that the court must take into consideration the existence of the s 14(2) statutory direction, and the reasons for it, the usual considerations will also remain relevant. 35 There are sound reasons for the s 14(2) statutory direction, including that any declaration sought under the FRA is usually a discrete issue and, as in this case, obtaining a declaration is a prerequisite for the grant of any other relief, such as relief claimed under the IFPA. Nonetheless, as Kirby and Callinan JJ warned in Tepko Pty Ltd v The Water Board:16 The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap. The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court’s, rather than the parties’, interests. Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question. 36 The applicants relied on the various authorities concerning the general rule which warn against the fragmentation of proceedings, particularly where there are risks that adverse credit findings may be made (necessitating the need for more than one judge to become involved) as well as the risk of an appeal, which will inevitably delay the ultimate resolution of the proceedings. See, for example, the observations of Giles CJ in Comm D in Tallglen v Pay TV Holdings Pty Ltd to the effect that the exercise of discretion:17 … must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of the right of appeal is borne in mind) brings delay, expense and hardship – that which the making of an order was intended to avoid. It is often the case that the need to make findings of fact for a decision of the separate question, especially findings which may involve issues of credit, tells strongly against the making of an order because related facts, and renewed issues of credit, will or may arise at a later stage in the proceedings. Experience teaches that it should be able to be seen with clarity that decision of a separate 16 Tepko Pty Ltd v The Water Board [2001] 206 CLR 1, [168]-[170] (Kirby and Callinan JJ). These observations have been cited on numerous occasions. See, for example, Liberty Financial Pty Ltd v Scott [2003] FCA 226, [26], [35] (Weinberg J); Ferraretto and Snappy Apple Pty Ltd v Cowell Clarke [2012] SASC 224, [21] (White J). 17 Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130, [142] (Giles CJ in Comm D). -- 9 of 15 -- [2024] SASCA 31 The Court 8 question will be beneficial in the conduct of the proceedings and the resolution to the parties dispute. 37 To similar effect are the observations of White J in Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC:18 The general rule is that all issues should be dealt with in a single trial. The trial process should not be unduly fragmented. In particular, it is inappropriate that one judge be asked to hear and determine disputed issues of fact, which involve an assessment of the credibility and reliability of the same witnesses, in more than one trial arising from one action. Further, the experience of the courts has been that splitting issues arising from the one action for separate determination with a view to shortening proceedings and saving costs frequently resulting in a prolongation of the proceedings and the incurring of additional costs. 38 In the circumstances of this case the primary judge approached the issue, correctly, from the perspective that it was for the applicants to persuade the court that the factors in favour of a separate trial were outweighed by the factors against a separate trial. That is to say, it was for the applicants to demonstrate why the factors in favour of a single trial of all issues outweighed the factors in favour of separate trials. That approach is mandated by the terms in which s 14(2) is expressed. The exercise of discretion associated with that determination is nevertheless broad and open textured. It must be exercised in practical way. 39 It cannot be said that the primary judge’s application of s 14(2) to the circumstances of this case was wrong or otherwise suggested error. Most importantly, there is no reason to think that the approach taken by the trial judge in the application of s 14(2) caused the applicants any substantial injustice. 40 Leave to appeal on this proposed appeal ground should be refused. Appeal ground 1: copying submissions without attribution 41 The applicants’ complaint concerns the adequacy and process of reasoning of the primary Judge. It is submitted that the degree of copying of the submissions of the respondent should produce the conclusion that this Court is not satisfied that there has been a proper exercise of the judicial function or an apprehension of bias. 42 The applicants relied on the well-known reasons of McHugh JA in Soulemezis v Dudley Holdings Pty Ltd, where his Honour described three core purposes for judges giving reasons, being:19 1. to enable the parties to see the extent to which their arguments have been understood and accepted, as well as the basis for the judge’s decision; 2. to further judicial accountability; and 18 Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC [2008] SASC 369, [92]-[93] (White J, with whom Kelly J agreed). 19 Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247, 279 (McHugh J). -- 10 of 15 -- [2024] SASCA 31 The Court 9 3. to enable interested parties to ascertain the basis upon which like cases will probably be decided in the future. 43 Of course, another well-recognised purpose for the giving of reasons is to facilitate the conduct of any appeal, because the appeal court should not have to speculate about the basis for any particular finding made.20 44 Whilst judicial copying has been said to be a long-standing and accepted practice, provided there is appropriate attribution,21 where a judge simply copies the submissions for one party, that may give rise to a conclusion that there has been error warranting appellate intervention.22 In Li v Attorney General for New South Wales, Basten JA, in the course of an application for judicial review, considered that reasons would be inadequate where a judge simply chooses one party’s submissions without referring to the submissions of the other party, and does not explain why the choice had been made.23 45 The applicants contended that the primary judge’s dispositive reasons substantially copied the submissions of the respondent without attribution. In support of this submission, the applicants prepared a table which referred to paragraphs [26] to [31] inclusive from the reasons of the primary judge and contrasted those with a number of paragraphs from the respondent’s written submissions which were before the primary judge. 46 Because of the close correlation between those six paragraphs and the respondent’s written submissions, the applicants contended that the judge did not refer to, and did not properly engage with, a number of material contentions advanced by them. In addition, it is contended that a number of the respondent’s submissions were accepted uncritically, without explanation. As can be seen, a number of these propositions bear on appeal grounds 2 and 3. 47 For the respondent, it was submitted that the applicants overstated the extent of what they claim was copied. The respondent contrasted Amaca Pty Ltd v Werfel,24 where the judge in that case copied verbatim, without attribution 71 of 91 pages, 242 of 359 paragraphs and 19,854 of 29,929 words into her reasons. Moreover, in addressing the six dispositive paragraphs, the respondent contended that the applicants ignored the central propositions addressed by the Full Court in Amaca Pty Ltd v Werfel:25 Nonetheless, we are not prepared to find that where there is extensive copying without attribution then, without more, the reasons are thereby inadequate and the resulting decision necessarily vitiated. Much depends on what has been copied and whether, nevertheless, the 20 Amaca Pty Ltd v Werfel (2020) 138 SASR 295, [21] (Kourakis CJ, Nicholson and Livesey JJ). 21 Cojocaru v British Columbia Women’s Hospital and Health Care [2013] 2 SCR 357, [30], [37]-[50] (McLachlin CJ for the Court). 22 Amaca Pty Ltd v Werfel (2020) 138 SASR 295, [14] (Kourakis CJ, Nicholson and Livesey JJ). 23 Li v Attorney General for New South Wales (2018) 99 NSWLR 630, [48], [54] (Basten JA, with whom White and Brereton JJA agreed). 24 Amaca Pty Ltd v Werfel (2020) 138 SASR 295, [8]-[31] (Kourakis CJ, Nicholson and Livesey JJ). 25 Amaca Pty Ltd v Werfel (2020) 138 SASR 295, [17] and [20] (Kourakis CJ, Nicholson and Livesey JJ). -- 11 of 15 -- [2024] SASCA 31 The Court 10 decision-maker has performed the task of engaging with the case of each party and making decisions on what divides the parties, whether they be matters going to evidence, or matters referable to legal principles and the proper application of those to the evidence before the court. … So, it is necessary for the Judge to “engage with the case presented”26 and to “expose his or her reasoning on points critical to the contest between the parties”, whether as to evidence or as to argument.27 The reasons must deal with the substantial points that have been raised, including findings on “material questions of fact”.28 Where a “party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected”.29 48 The respondent submitted that what was referred to was not copied verbatim and the wording was substantially amended so as to reflect his Honour’s independent engagement and reasoning. 49 Whilst there was undoubtedly a close adherence to the submissions of the respondent, it is clear that the primary judge had regard to the substantial points raised by the applicants,30 before finding that these were not accepted,31 and addressing their submissions concerning the proper construction of s 14(2) of the FRA and four factors which, his Honour found, favoured separate trials.32 50 In considering the applicants’ complaints, it should be borne in mind that the nature of the procedural issue that arose in the present case required that the primary judge consider the range of factors pointing each way, and ultimately determine where the interests of justice lay. In that context, it is entirely understandable and appropriate for a judge to adopt, or draw heavily upon, a party’s articulation of the considerations which it says point in its favour. Different considerations might arise in another context, for example where a judge’s operative reasoning on a contested issue, such as when addressing credibility issues or the right to final relief, reflects the wholesale adoption of one party’s submissions without demonstrating any engagement with the other party’s countervailing submissions. 51 After identifying the main considerations relied upon by each of the parties, the primary judge ultimately determined that a joint trial of the FRA declaration and the IFPA claims would be “very complex” and involve substantial costs and delay which would, ultimately, be wasted if the applicant could not demonstrate that she was entitled to a relevant declaration.33 Whilst the primary judge 26 Whalan v Kogarah Municipal Council [2007] NSWCA 5, [40] (Mason P, Ipp and Tobias JJA). 27 DL v The Queen (2018) 266 CLR 1, [131] (Nettle J). 28 DL v The Queen (2018) 266 CLR 1, [130]. 29 Hunter v Transport Accident Commission (2005) 43 MVR 130, [21] (Nettle JA). 30 Karbowiak v Mitolo [2023] SASC 168, [13]-[17]. 31 Karbowiak v Mitolo [2023] SASC 168, [18]. 32 Karbowiak v Mitolo [2023] SASC 168, [21]-[24] and [25]-[33]. 33 Karbowiak v Mitolo [2023] SASC 168, [25]-[26]. -- 12 of 15 -- [2024] SASCA 31 The Court 11 acknowledged that there might be some overlap in the evidence required for trials under both the FRA and the IFPA, there would likely be a number of issues addressed in a trial concerning the IFPA claims which would have no relevance to the claim for a declaration made under the FRA.34 52 The determination made by the judge was, ultimately, not one that required extended analysis, nor lengthy or complex reasons. The judge was not required to refer to all of the submissions made by the parties and, so long as their key submissions were addressed and the reasoning in support of the decision made clear on a reading of the reasons as a whole, there can be no complaint about a degree of copying. 53 In our view, particularly bearing in mind that the issue concerned a matter of practice and procedure involving the weighing of competing considerations, there is sufficient in the reasons of the primary judge to demonstrate that he did engage with the case for the applicants and he explained why he did not accept it and found in favour of separate trials. 54 In these circumstances, leave to appeal proposed appeal ground 1 should be refused. Appeal grounds 2 and 3: the failure to engage or uncritical acceptance 55 There are six matters referred to in proposed appeal ground 2 of the notice of appeal and they can be dealt with briefly. In general terms, the complaints made by the applicants are answered by the proposition that the reasons of the judge need not address every submission which was made. 56 Although the applicants suggested that the reasons of the trial judge did not address the valuation of the estate, it is clear that the primary judge did have regard to that issue in a general way.35 Moreover, whilst the primary judge did not address the prospect of a mediation nor how that might be assisted by valuations, it is clear from the tenor of the reasons as a whole that his Honour was concerned to quickly address an essential pre-requisite for any IFPA claim by determining whether and in what terms the first applicant was entitled to a declaration under the FRA. 57 Whilst it is true that the primary judge did not address the consequences of the first applicant being declared the deceased’s domestic partner at a date earlier than the date of death, it is difficult to see this as being of much significance. Even if the first applicant succeeded only in demonstrating an entitlement to a declaration as at, say, a date in 2012, that would provide a clear framework for the determination of the remaining issues concerning provision, and it seems unlikely that any overlap in the evidence necessary to be called in connection with the IFPA claims would be significant. 34 Karbowiak v Mitolo [2023] SASC 168, [27]. 35 Karbowiak v Mitolo [2023] SASC 168, [13]. -- 13 of 15 -- [2024] SASCA 31 The Court 12 58 The applicants also contended that the primary judge failed to address the fact that there was an agreement as to the replacement of the administrator. It will be recalled that the respondent is 90 years of age and it was agreed that she will be replaced. However, that agreement will not take effect were the first applicant to be declared the deceased’s domestic partner at the date of his death because she will become entitled to be administrator. In any event, his Honour was entitled to look to the conduct of the parties at the time of his determination when considering whether, even if the administrator were replaced, there would likely remain contested valuation issues between the parties. 59 Finally, whilst it is true that the primary judge did not address the need for a valuation of the estate assets in any event as part of the administration of the estate, this too is a matter of little moment. It is one thing to determine the value of assets and liabilities in the course of a contest between adversaries and another to determine it where only members of the Mitolo family are involved. 60 As for appeal ground 3, there are seven matters raised in the notice of appeal. None reveal error sufficient to warrant the intervention of this Court. 61 The first matter complained about is the acceptance of the submission by the respondent that there would be unnecessary and wasted costs and complexity associated with valuing the estate if there was a joint trial of FRA and IFPA issues. This is the counterpoint to the last matter raised under proposed appeal ground 2. Detailed evidence was not required. Again, it is not difficult to see that there is likely to be much greater expense and time devoted to valuation in an adversarial setting as distinct from in the course of the administration of a deceased estate involving the Mitolo family. The prospect that substantial costs might be wasted if no FPA declaration is made as at the date of death is not difficult to imagine. 62 The applicants then complained about the acceptance of the assertion by the respondent that the resolution of the FRA declaration could be delayed a year or years if it is necessary to investigate and prepare for a trial of the IFPA claims as well. The appellants claim that there is no evidence to support that assertion. Again, it is difficult to see why evidence would be required by an experienced judge to estimate the time required to prepare proceedings for a trial, especially when comparing that time and effort against the likely lesser time and effort required for the purposes of securing a declaration under the FRA. 63 Insofar as the primary judge accepted the submission of the respondent that the first applicant might obtain a declaration as at the date of death, or not at all, and failed to engage with the prospect of her obtaining a declaration at an earlier date this, again, is of little or no moment in determining whether separate trials should have been ordered. Little will be wasted in a trial confined to securing an FRA declaration and, depending on the outcome, the course of any future litigation will be clearer. The same may be said about the complaints about matters such as whether an FRA declaration will increase the prospects of settlement. It was not necessary for the primary judge to do other than form general views about these -- 14 of 15 -- [2024] SASCA 31 The Court 13 kinds of matters in the exercise of a broad discretion about whether it was appropriate to proceed by way of separate trials rather than one trial. 64 Finally, the applicants went so far as to assert in their notice of appeal that the finding that proceeding first with an FRA declaration will avoid substantial costs being wasted was “irrational”. Presumably the complaint was expressed in this way so as to engage the principles relating to vitiating an exercise of discretion. Respectfully, it was neither irrational nor wrong to conclude that proceeding first with an FRA declaration in the circumstances of this case is likely to save substantial costs in this matter. 65 In all of these circumstances leave to appeal proposed appeal grounds 2 and 3 should be refused. Conclusion 66 Looked at in broad terms, the proposed appeal grounds lack merit. Further, and in any event, the applicants have not demonstrated how the order that there be a separate trial of the FRA declaration, together with the consequential orders facilitating the hearing of that trial in April this year, will cause them any substantial injustice. 67 In all of these circumstances, leave to appeal the interlocutory decision of the primary judge should be refused, with costs. -- 15 of 15 --