Acton v Acton & Ors [1994] QCA 73

IN THE COURT OF APPEAL [1994] QCA 073 SUPREME COURT OF QUEENSLAND Appeal No. 179 of 1993 Before Fitzgerald P. Davies JA. Mackenzie J. [Acton v. Acton] BETWEEN: ROBERT THOMAS ACTON Appellant AND: GRAEME WILLIAM ACTON, EVAN RUSSEL ACTON and ALAN JOHN ACTON Respondents AND: ELIZABETH ANN ACTON Respondent REASONS FOR JUDGMENT - THE COURT Judgment delivered 29/03/94 On 18 June 1993, three of the sons of the late Graeme William Acton (the "male respondents") caused an originating summons to be issued out of the Central Registry of the Supreme Court, by which each made application pursuant to section 41 of the Succession Act 1981 as amended seeking that adequate provision be made for his maintenance and support out of the estate of the deceased. On 8 September 1993, the Central Judge made an order giving directions for the further conduct of the proceeding, including an order fixing the time within which "Any further affidavits on behalf of the [male respondents] be filed and copies thereof served" on the solicitors for the appellant, another son of the deceased and a beneficiary under his will, and on the solicitors for their sister (the "female respondent"). Although the order made on 8 September 1993 makes no reference to the appellant's application at the time of the directions hearing, he has appealed to this Court against the refusal of the Central Judge to strike out the -- 1 of 5 -- 2 originating summons on the basis that it fails "to show a prima facie case that [the male respondents] are Applicants within the meaning of the Act and are otherwise entitled to bring the application" , as required by Practice Directions numbers 1/1981 and/or 7/1982. At the hearing of the appeal, the appellant conceded that the female respondent is entitled to take advantage of the originating summons issued by the male respondents and argued it should only be struck out as an application by the male respondents. The Court is not called on to make a decision on the substantive point sought to be raised by the appellant. It was well within the Central Judge's discretion, and in our opinion a correct exercise of that discretion, to give the male respondents a further opportunity to file and serve additional affidavits to establish their case. It was neither essential, nor appropriate, to make a final decision on the substantive issues in the proceeding at a time when it was plain that all the male respondents' material had not been forthcoming. Counsel who appeared in this Court for the male respondents assured us that further affidavits are to be filed and served. The appeal is accordingly dismissed. The appellant must pay the respondents' costs. The Court will make further orders substituting new times for the steps to be taken if the details can be agreed between the parties. -- 2 of 5 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 179 of 1993 Brisbane [Acton v. Acton] BETWEEN: ROBERT THOMAS ACTON Appellant AND: GRAEME WILLIAM ACTON, EVAN RUSSEL ACTON and ALAN JOHN ACTON Respondents AND: ELIZABETH ANN ACTON Respondent Fitzgerald P. Davies JA. Mackenzie J. Judgment delivered 29/03/94 Judgment of the Court Appeal dismissed with costs. Court to make further orders substituting new times for the steps to be taken provided that the details can be agreed between the parties. CATCHWORDS: TESTATOR'S FAMILY MAINTENANCE - application of adult sons - Succession Act 1981 s.41 - whether adequate exercise of discretion by Central Judge to give extra time for party to file and serve additional affidavits. Counsel: Mr. R. Bain Q.C., with him Mr. A. Wilson for the appellant Mr. P.A.Keane Q.C. for the respondents Mr. R. Lilley for the respondent Solicitors: Sly and Weigall, Cannan and Peterson for the appellant Rees R. and Sydney Jones for the respondents John Williams and Associates, Rockhampton for the respondent -- 3 of 5 -- 4 Hearing Date: 23/03/94 -- 4 of 5 -- 5 -- 5 of 5 --