Blanche, Re [1999] QSC 431

State Reporting Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL .JURISDICTION SHEPHERDSON J No 9010 of 1999 REVISED COPfES ISSUED State Reporting Bureau Oate IN THE MATTER OF THE SUCCESSION ACT 1981 AND THE WILL OF NORMAN BOSWELL BLANCHE LATE OF MACKAY IN THE STATE OF QUEENSLAND, DRILLING CONTRACTOR, DECEASED and IN THE MATTER OF AN APPLICATION BY LORRAINE ANN DUTTON UNDER PART IV OF THE SAID ACT No 11056 of 1998 IN THE MATTER OF THE SUCCESSION ACT 1981 and IN THE MATTER OF THE WILL OF NORMAN LESLIE BLANCHE LATE OF MACKAY IN THE STATE OF QUEENSLAND, DRILLING CONTRACTOR, DECEASED and IN THE MATTER OF AN APPLICATION BY JOYCELYN MAUD BLANCHE, REBECCA MARIA BLANCHE AND BENJAMIN NORMAN BLANCHE UNDER PART IV OF THE SAID ACT BRISBANE .. DATE 22/11/99 JUDGMENT 1 II. FI""r, The Law Courts, Georgc Slret:!, Brishane, Q..WOO Telephonc: (07) J2~7 ~Jr.o F:I"<: (07) J2~7 5:;.12 -- 1 of 10 -- EX PARTE REASONS HIS HONOUR: In this application before me the material shows that Norman Boswell Blanche late of Mackay, died on 28 June 1998, after having made a will dated 25 June 1998. The executors and trustees named in that will were Francis 10 Clayton Blanche and Allan Stewart Blanche, brothers of the testator. On 4 September 1998 this Court granted probate to the cexecutors, and on 7 September 1998 that probate was sealed 20 by this Court. On 30 November 1998 in this Court at Brisbane in OS Number 11056 the widow and the two children ( of the testator applied for relief under the family provisions of the Succession Act. The summons is before me indirectly and it did not fix a return date. It simply required the parties named to attend at the Chambers of the Chamber Judge, Brisbane, "upon a date to be fixed by cagreement after notice of not less than 14 days from one party to the other parties on the hearing of an application ... " . The widow is Joycelyn Maud Blanche, the daughter is Rebecca Maria Blanche, and the son is Benjamin Norman Blanche, all of whom live in Brisbane. On the material it appears that ~o 50 Rebecca and Benjamin are the only children of the testator by his marriage to Joycelyn. The evidence shows that the testator had been previously married. Whether or not his first wife is still alive is not known. He does have two 2 -- 2 of 10 -- ) / 221199 T1/RJW15 M/T 6716/99 (Shepherdson J) children by his earlier marriage. They are Vickie Leigh Hoole and Tanya Michelle Wheeley. In as 11056 of 1998 Tanya Michelle Wheeley, by her solicitors, Clarke and Kann, gave notice that she intended to appear and be separately· represented in the application made by Joycelyn and her two children, Rebecca and Benjamin. To that intent, she has already filed an affidavit on 12 April 1999. As I have said, as 11056 has not been brought before the Court save in an indirect way by the application now before me. Before I turn to that application I should say, also, that Lorraine Ann Dutton has made an application to the Supreme Court of Queensland Mackay (Misc 2 of 1999) in which she sought an order for adequate provision for her proper maintenance and support out of the testator's estate. That application was filed at Mackay on 26 February 1999. In common parlance, she claims to be the de facto wife of the testator. The Mackay application was, by order of this Court, made on 16 June 1999, transferred to the Brisbane registry, and is to be dealt with as if it had been commenced in the Brisbane registry of this Court. Lorraine Ann Dutton has applied to this Court for the following orders: 1. that pursuant to rule 78 of the Uniform Civil 10 20 ~o 40 50 Procedure Rules, the two above actions 9010 of ~n 60 3 JUDGMENT -- 3 of 10 -- 221199 T1/RJW15 M/T 6716/99 (Shepherdson J) 1999, which is the new number for the Mackay action, and 11056 of 1998, be consolidated and thereafter carried on as one action; 2. that all necessary directions as to the conduct of the consolidated action be made; 3. that the costs of the abovementioned actions, including therein the costs of and incidental to "this application" be costs in the said consolidated action; 4. such further or other orders as to the Master seems meet. That application was filed on 4 November 1999. Today Mr Randall of Brisbane solicitors has appeared as town agents for the Mackay solicitors who represent the applicant, Lorraine Ann Dutton. Mr Geraghty of counsel has appeared for the original applicants in 11056 of 1998 and Mr Lynch has appeared for the executors. It is, I think, unfortunate that there have been two . ',; 10 ~.; .. 20 20 _ 40 separate applications made in this Court - one in Brisbane 30 50 and the other in Mackay. I should, I think, also add that the application made in Mackay was not, in terms of the originating summons, returnable on a fixed date. It also was to be returned "upon a date to be fixed by agreement c after not less than 14 days from one party to the other 60 4 JUDGMENT -----~~- ------ -- 4 of 10 -- \ I / 221199 T2/PMD18 M/T 6716/99 (Shepherdson J) parties" on the hearing of an application under the Succession Act by Lorraine Ann Dutton. Under section 41(6) of the Succession Act 1981 "where an application has been filed on behalf of any person it may be 10 treated by the Court as; and/ so far as regards the question of limitation, shall be deemed to be, an application on behalf of all persons who might apply." It is apparent from the application made by Lorraine Ann Dutton1s solicitors that the solicitors knew that probate had been granted. I infer that her solicitors did not bother to get in touch with the solicitors acting for the executors in order to find out whether or not any application for family provision had already been made in the testators estate. Had they done so I have little doubt that the executors would have notified them of the application already filed in OSl1056 of 1998. I should add that the application by Lorraine Ann Dutton was not filed until 26 February 1999. From the Bar Table Mr Lynch has told me there is no problem as to any question of limitation. I think this case well illustrates how matters of this type can, in the absence of appropriate care by the solicitors, escalate to a stage where costs can be unnecessarily incurred and multiplied. I note that in re C White Deceased (1932) 49 Weekly Notes (NSW) 178, Harvey, Chief Judge in Equity dealt with a matter 5 JUDGMENT 20 20 40 :~o 50 60 -- 5 of 10 -- 221199 T2/PMD18 M/T 6716/99 (Shepherdson J) of costs in a situation where there had been two separate applications. He was satisfied in that case that the circumstances justified separate applications and he went on to say this: "But wherever there are separate applications it seems 10 to me that at the earl·iest opportunity either the applicants or the executors, respondents, should make an application to the Court for the consolidation of the matters and I think that in the ordinary cases, unless there are special circumstances, as soon as an applicant has made ·an application to the Court he should, before he files his evidence because it is not necessary that his evidence should be filed concurrently with the originating proceeding - inquire from the executor whether he has reason to suppose that other applications are pending or threatened; and if the applicant does not inquire it should be the duty of the executor to inform him that there are other applications pending in order that, if possible, the duplication of evidence should be avoided. Nothing is more important in these testator family maintenance applications than that the cost should be reduced to a minimum. They so often occur in small estates where every pound of expense that can be saved ought to be saved. I think that the Court should use its powers as far as possible to secure that result, but it is impossible to lay down any general rule that where there is more than one person making an 6 JUDGMENT 20 2~~ 40 30 50 ~n 60 -- 6 of 10 -- 221199 T2/PMD18 M/T 6716/99 (Shepherdson J) application they should join together in instituting proceedings." As I have said, it is a pity that Lorraine Dutton1s solicitors did not first inquire of the executors. They did 10 not do so, and application is now made for consolidation. Although I indicated during argument that I was not prepared to order the matters be consolidated, I have on further reflection decided that such an order should be made. However I am not to be taken as implying that the costs so far incurred, particularly by Lorraine Ann Dutton, are costs which she will recover at the conclusion of the hearing of the application made by the widow, Rebecca and Benjamin, the application by Tanya Michelle Wheeley and the application by Lorraine Dutton. The costs are matters which the Judge hearing the case will have to sort out. On looking at the material, I note that the following parties are interested in an application made for family provision. I propose to list them. 1. The widow, Joycelyn Maud Blanche 2. The daughter, Rebecca Maria Blanche 3. The son, Benjamin Norman Blanche 4. The daughter by the first marriage, Vicki Leigh Hoole 5. Her husband, named in the will, Tristian Hoole 6. The executor, Francis Clayton Blanche 7. The executor, Allan Stewart Blanche 7 JUDGMENT 20 1 (1 JO 2D 40 50 60 -- 7 of 10 -- 221199 T3/BP17 M/T 6716/99 (Shepherdson J) (both of these persons are beneficiaries named in the will) 8. Juanita Blanche - a sister of the testator who is a devisee of real estate 9. Lorraine Ann Dutton 10. Tanya Michelle Wheeley- Of these above persons, Joycelyn, Rebecca and Benjamin have applied, Lorraine Ann Dutton has applied and Tanya Michelle Wheeley has applied. It is possible that the testatorIs former wife may be eligible to claim. Nevertheless in my view the executors should find out whether or not she is still alive and where she lives and send her notice of the application which has been made in 11056 of 1998. It is my view that the matters should be heard and determined in Brisbane and that OS 11056 of 1998 being filed in the Court first in time means that Mr Geraghtyls clients are the first applicants who have carriage of the matter. I have been given a form of order. I do not propo'se to order that the costs of and incidental to the actions 11056 of 1998 and 9010 of 1999, including costs of and incidental to the application now before me be costs in the consolidated action. Rather, I propose to order that the costs of and incidental to those two applications, including 8 JUDGMENT 10.') 20 ( 20 40 30 50 40 60 -- 8 of 10 -- 221199 T3/BP17 M/T 6716/99 (Shepherdson J) the costs of the application before me, which was filed on 4 November 1999 be reserved. I propose to return the draft so that counsel and solicitors who appeared before me can prepare a draft which adequately 10 requires notice to all those 'persons who have not so far indicated an intention to apply for family provision. In my view, the draft order given to me should be amended so that each applicant who is required to file and serve any further material is identified and in addition each respondent referred to is identified. It seems to me that the problems which we have today have been probably caused by the most unusual and unsatisfactory way in which each of the originating summonses was framed. They were not brought before the Court, and as I understand it, today is the first occasion the matters have come before the Court. It is my view that the advice given all those years ago by Chief Judge Harvey should be followed in Queensland. That is the situation. I will get you to prepare another draft and when it is completed, each of you can sign it, send it back and I will have a look at it. But I do not propose to spend the day going through the form of order you have got. But please bear in mind, will you, the forms for that order on the first return of the application for family 9 JUDGMENT 20 :0 30 ~o 40 3b 50 60 -- 9 of 10 -- 221199 T3/BP17 M/T 6716/99 (Shepherdson J) provision. I think there is a form in the older book by Davern Wright, and there is probably a more up to date form in Mr De GrE:>ot's work. But do not try and dream up the orders yourself and make sure everybody's covered. 10 JUDGMENT 10 20 20 40 50 ( 60 -- 10 of 10 --