Beaumont, Re; Re Dean [1993] QSC 27

IN THE SUPREME COURT OF QUEENSLAND O.S. No. 45 of 1993 IN THE MATTER of the Succession Act 1981 as amended - and - IN THE MATTER of the Will of BURTON WILLIAM BEAUMONT late of 134 Bramston Street, Tarragindi, Brisbane in the State of Queensland, Retired, Deceased - and - IN THE MATTER of an Application by BEVERLEY MARION DEAN under Part 4 of the said Act REASONS FOR JUDGMENT - WHITE J. Delivered on the 17th day of February, 1993 Counsel: Applicant/respondent - solicitor Respondent/applicant - solicitor Solicitors: Graham Davies & Associates, town agents for O'Dwyer & Bradley for the applicant/respondent McCarthy & Holzberger for the respondent/applicant Hearing Date: 17th February, 1993 7 -- 1 of 24 -- IN THE SUPREME COURT OF QUEENSLAND No. 1033 of 1989 Brisbane Before Justice White [Richards v. Richardson & Ors] BETWEEN: KRISTINE ROSEANN RICHARDS Plaintiff AND: KEVIN HARRY RICHARDSON First Defendant AND: BUNGE PROPERTIES PTY. LTD. Second Defendant THE WORKERS' COMPENSATION BOARD OF QUEENSLAND Defendant by Election AND: SUNCORP INSURANCE AND FINANCE Third Party REASONS FOR JUDGMENT - WHITE J. Judgment delivered 03/03/1993 CATCHWORDS: Counsel: Solicitors: Lord Campbell' s action - employee foreman killed when crushed by forklift - unsafe place of work - unsafe system of work - system of informal signals with truck driver deceased employee with authority and skills. Mr. P. Feely for plaintiff Mr. R. Douglas for first defendant and defendant by election C.A. Sciacca and Associates for plaintiff McCrea Jones for first defendant and defendant by election Hearing Dates: 18th and 19th February, 1993 -- 2 of 24 -- IN THE SUPREME COURT OF QUEENSLAND No. 1033 of 1989 BETWEEN: KRISTINE ROSEANN RICHARDS Plaintiff AND: KEVIN HARRY RICHARDSON First Defendant AND: BUNGE PROPERTIES PTY. LTD. Second Defendant AND: THE WORKERS' COMPENSATION BOARD OF QUEENSLAND Defendant by Election AND: SUNCORP INSURANCE AND FINANCE Third Party REASONS FOR JUDGMENT - WHITE J. Judgment delivered 03/03/1993. The plaintiff is the widow of Garry Ronald Richards ("the deceased") who died in the afternoon of the 4th September, 1987 when he was crushed by a forklift in the course of his employment with the second defendant at its premises at Eagle Farm. The employer was commonly known as Union Steel and was referred to throughout the trial by that name and it will be convenient to continue to do so. The plaintiff brings her action on her own behalf and on behalf of her son Jacob Marcus Richards born on 18th -- 3 of 24 -- 2 December, 1985 pursuant to s.15A of the Common Law Practice Act 1867-1981. The first defendant was the driver of a prime mover to which a trailer was attached and from which the deceased was unloading nine metre length aluminium pipes at the relevant time. The Workers' Compensation Board has elected to be joined as defendant and in turn has joined the licensed insurer of the first defendant. Quantum has been settled between the plaintiff and defendants in the sum of $214,000. The defendant by election and the third party have settled the question of contribution as between themselves. What remains in issue for decision is the liability of the defendants for the death of the deceased and any question of contributory negligence. The deceased held a certificate to operate a forklift at the time of his death and had done so since 22nd March, 1982. He had been employed as a forklift operator at Union Steel for about 18 .months and had been a foreman for possibly six to nine months prior to his death. He was appointed foreman by the site manager at Union Steel, Mr. Alan Neish, himself a qualified forklift operator, who described the deceased as a competent foreman and a competent forklift operator. A fellow employee and forklift driver, Mr. Frank Lenz, described the deceased as a very good forklift operator. Union Steel was engaged in the distribution of steel in the south-east Queensland area. Its premises at Eagle Farm occupied about five acres. Trucks would load and unload material at that -- 4 of 24 -- 3 site. It appears that most of the unloading occurred undercover but some took place outside and that is where the events occurred giving rise to the death of Mr. Richards. That area is shown in the photograph Exhibit 1A taken shortly after the deceased was killed. It depicts two large warehouses separated by a cement apron or roadway. The distance between the warehouses was not given in evidence but it appears to be a wide area able to accommodate some four to five semi-trailers in parallel. The truck on the left of the photograph was moved closer to the warehouse on the left after the accident to allow Mr. Lenz to come through at an angle on a large forklift to enable the smaller forklift to be lifted off the deceased. Mr. Lenz estimated that truck originally to have been within four or five feet of the back of the fallen forklift. The smaller forklift is shown in Exhibit 1A as lying on its side with the underneath facing the camera on a slight angle from the semi-trailer driven by the first defendant. The load of aluminium pipes can be seen lying almost parallel to the semi- trailer between the overturned forklift and the semi-trailer. Between the first defendant's semi-trailer and the warehouse on the right of the photograph can be seen a quantity of stacked goods and materials possibly piping, resting on pieces of timber which protrude out onto the apron. The first defendant, a self-employed truck driver, had attended at the premises of Union Steel approximately three times per week for several years prior to the accident. He knew the deceased and had spoken to him in the course of attending at Union -- 5 of 24 -- 4 Steel's premises. He had regularly seen the deceased operate the forklift and regarded him as a proficient driver. The deceased on previous visits would direct the first defendant where to drive his truck and direct him as to what to do and who was to load his truck. The first defendant would talk to the deceased if he had any problems concerning the loading of any equipment or steel. On 4th September, 1987 the first defendant arrived at Union Steel's premises already loaded with the aluminium pipes. He was to load plate steel at Union Steel and the pipes had to be taken off his trailer so that the steel plate could be put on the floor and the pipes reloaded. The trailer was 12 metres long and the pipes were positioned on the passenger side and closer to the rear of the trailer. The first defendant discussed this with the deceased but can now no longer recall the details of the conversation. The first defendant after that conversation returned to the cabin of his semi-trailer and observed the load being removed by the deceased by looking into a side mirror located on the passenger side door of the prime mover~ That mirror gave the first defendant vision down the edge of the trailer and approximately three to four feet out from the side of the trailer. On the bottom of that mirror was superimposed another mirror described by him as a "spotter" mirror which gave a wider angle of vision with some distortion in that the image was slightly larger. It allowed the first defendant to see the ground close to the front of the semi- trailer and further out from the trailer than was possible with the standard mirror. -- 6 of 24 -- 5 The first defendant watched the aluminium pipe being lifted off the trailer in the passenger mirror continuously until he saw that the load was a distance of about 12 to 18 inches clear from the trailer and that there was no part of the load projecting over the edge of the trailer. The first defendant then changed his eye contact to the spotter mirror to watch the deceased who was sitting in the driving position on the forklift. Very shortly after, the deceased raised his left arm and waved. The first defendant was unable to recall precisely the deceased's arm movement. In the witness box he held up his own left arm with the palm of his hand facing out in a fairly relaxed fashion. He did however say that whatever its detail it was a signal with which he was quite familiar from working with the deceased on numerous previous occasions. He said that if the deceased were positioning the first defendant's truck which was being backed up such a wave would be an indication to stop. On the other hand, if the truck were stationary such a wave would be an indication to move. The first defendant's semi-trailer on this occasion was stationary and when the first defendant saw the signal he checked the load to see if it was still clear, put the semi-trailer into a low gear and moved forward very slowly. He looked into his driver's side rear vision mirror noting the timbers supporting the pipes stacked on the ground on the right hand side of his vehicle close to the trailer wheels to which I have referred. He did not look in the passenger side mirror again. The semi-trailer went forward 10 to 12 feet approximately and the first defendant applied the brakes because -- 7 of 24 -- 6 vehicle was waving "frantically". He then got out of the prime- mover's cabin. There were two witnesses to much of what occurred although neither were watching at the crucial moment. They were Mr. Frank Lenz, foreman and forklift driver with Union Steel and Mr. Paul Renz, a truck driver waiting to take up a load. Mr. Lenz had worked for the second defendant for some six to nine months prior to the accident as a forklift driver on the same shift as the deceased. He observed the deceased's conversation with the first defendant, saw the deceased get on to the forklift and drive in to take the load of pipes off the first defendant's semi-trailer. Mr. Lenz himself checked to make sure that the forks were under both timber lines which were around the pipes so that the load would not slip off and saw that the load was evenly balanced. Mr. Lenz described it as "a good lift". He saw the deceased lift up the load and back the forklift out (in cross- examination he said that he did not see the forklift reverse back, transcript p.18 1.33). The semi-trailer was stationary. Mr. Lenz turned and walked away from the forklift but turned back when he heard someone yelling. He saw the forklift tipping over and observed that the back tailgate of the trailer had come into contact with the load on the forklift. The semi-trailer was moving forward slowly. semi-trailer had By the time he had finished turning around the stopped. He noted that the forklift was positioned further back from the side of the first defendant's vehicle and that it was falling at an angle so that the rear of the -- 8 of 24 -- 7 forklift was closer to the trailer than the front, in other words, that the forklift was not "square on" to the trailer. This was confirmed by Mr. Lenz when he saw the forklift lying on the ground. He also observed that the load was still held up high on the tines of the forklift and that the semi-trailer had moved forward in a straight line. Mr. Lenz called to the driver of the truck parallel to the first defendant's semi-trailer (and seen on the left of the photograph Exhibit 1A) to move and got a bigger forklift which was about 40 metres away. That truck had to be moved because Mr. Lenz could not bring the forklift in straight to lift the small forklift off the deceased. This was because the small forklift was at an angle to the first defendant's vehicle and Mr. Lenz could only effect a lift if straight on to the small forklift. This can best be seen by reference to photograph Exhibit 1D. Mr. Lenz used the forklift to elevate the overhead protection area of the small forklift in order to extract the deceased. Mr. Lenz agreed that the ends of the tines of the forklift closest to the tray of the first defendant's trailer were well clear of the tray after the fall. The other witness, Mr. Renz, was seated in his truck facing towards the first defendant's vehicle waiting to load. His truck can be seen above the small forklift in the left centre of photograph Exhibit 1 A. Mr. Renz had been to Union Steel's premises a few times previously and had met the deceased. He observed the deceased pick up the pipes on the forklift, elevate the load above the deck of the trailer and reverse away from the trailer. -- 9 of 24 -- 8 Although Mr. Renz could not see clearance light between the load and the trailer because of the angle of his line of sight (photograph Exhibit 2 demonstrates this; Mr. Renz's truck's left passenger door is on the front right of the photograph), he was comfortable that there was clearance. At the coroner's inquest Mr. Renz gave evidence that he saw the deceased wave after he had reversed the forklift away from the trailer. He was less confident of the detail of this when giving evidence on this occasion but said that he was reasonably sure that the deceased raised his left hand and waved. He said that in his 15 years experience as a truck driver such a wave in the circumstances prevailing would be a signal to the truck driver to move on. Mr. Lenz said that he looked away for a second or two and when he looked back the truck was moving forwards. He then saw the forklift start to tip and fall. He thought that the truck moved six to twelve feet before it stopped. Evidence was adduced from a number of witnesses as to safe practices when using a forklift. The most relevant seems to be the need to drop a load as soon as possible because forklifts are unstable with a load in an elevated position. There was a general consensus that it would be unsafe to turn a forklift to the right or left when carrying a load in the vicinity of a moving platform until well clear. Reversing away at right angles to the moving platform was the agreed method of clearing the platform. Whether the loading area used on this occasion was confined in the sense that it created a hazardous work environment was in -- 10 of 24 -- 9 issue. Mr. Lenz thought that it was just a normal working day neither busy nor quiet. There was, I find, on the balance of the evidence, an average amount of industrial noise. There would seem to have been three trucks in the general area on the apron where the loading was taking place - the first defendant's, Mr. Renz's waiting to load and the third truck which was moved to allow the large forklift in. It was accepted that the deceased as foreman could and did readily direct the truck drivers who came onto Union Steel's premises to move their vehicles to appropriate loading points. There was no evidence to show that there was want of room on the site generally. The driver of the third truck was able to move his truck quickly when directed to do so by Mr. Lenz so as to clear the area. The steel laid out on the ground on the driver's side of the first defendant's semi-trailer near the warehouse appears to have narrowed the area. The evidence was that there was insufficient room for the deceased to turn his forklift with its 9 metre wide load between the first defendant's semi-trailer and the third truck whilst the first defendant's semi-trailer remained stationary. It is not, however, clear that it was necessary for the deceased to turn the forklift or if that was his intention. Mr. Lenz said that as far as he could recall the aluminium piping taken from the first defendant's trailer was going to be put on the opposite side of the first defendant's vehicle and that was why his semi-trailer was being moved forward. On this view there was no occasion for the deceased to do other than go straight back, for which Mr. Lenz says that there was sufficient clearance, and then -- 11 of 24 -- 10 to go forward when the first defendant's semi-trailer had moved forward out of the way. The case for the plaintiff against the second defendant, the employer, in submissions was:- 1. that no truck should have been required to move in the loading process; 2. that it was negligent not to have in place a formal signalling system between a forklift driver and the driver of a truck required to move during the loading process; 3. that the rear metal gate on the trailer of the vehicle being loaded ought to have been required to be removed during the loading process; 4. that the workplace was permitted to be cramped and/or cluttered and did not allow for safe manoeuvring by the forklift driver. The case against the first defendant, the driver, in submissions was:- 1. that he did not keep a proper lookout that the deceased and the load remained clear of his truck when he commenced moving; 2. that he negligently misinterpreted the deceased's signal which was "stop" and not "go"; 3. that he ought to have removed the rear metal gate of his trailer before the unloading process commenced. -- 12 of 24 -- 11 The appropriate legal principles to be applied were not in dispute by counsel. They were stated by Gibbs C.J. in MacLean's Roylen Cruises Pty. Ltd. v. McEwan (1984) 58 A.L.J.R. 423 at p.425:- "The duty of the appellant, as the employer of the respondent, was to take reasonable care to avoid exposing his employee to unnecessary risk of injury. In a case such as the present, for the respondent to succeed 'it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment' : Vozza v. Tooth & Co. Ltd. (1964) 112 C.L.R. 316 at 319." There is an obligation on an employer to instruct his employee in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury, O'Connor v. Commissioner for Government Transport (1954) 100 C.L.R. 225. It was not seriously pressed by Mr. Feely for the plaintiff that the second defendant ought to have prohibited all trucks coming onto the site to be moved during the loading or unloading operation. The danger inherent in having two moving bodies in juxtaposition is recognised, (see in particular the evidence of Mr. King at transcript p.55) but, in effect, to require drivers to leave their trucks to be loaded and to return to the cabin only when the forklift had left the relevant area entirely would not appear to be called for and would certainly impede the dispatch of business. -- 13 of 24 -- 12 There was and neither is there any formalised system of signals between drivers of trucks and forklift operators on the Union Steel site nor indeed, it would appear, anywhere else in south east Queensland. Evidence was given of Australian Standards signals for use between dogmen and crane drivers. The forklift drivers are familiar with them for use when operating cranes. As Mr. King, an engineer called by the plaintiff, noted, the crane driver is usually unable to see the load and is directed by the dogman as to positioning to effect the lift. In the truck/forklift situation the forklift operator only is in control and involved in moving the load. If the driver of the truck is to move he must know when it is safe to move. Whilst the truck driver must check from the cabin of his truck - usually with the rear vision mirror - that there is no impediment to his vehicle's movement, he is dependent upon the forklift driver communicating with him that it is safe from the forklift driver's point of view for the truck to move. What is necessary, as was recognised by Mr. King, is that there is agreement as to the signals between the forklift driver and the truck driver. The first defendant had a long association with the deceased loading and unloading his vehicle with the use of a forklift. He had a conversation with the deceased on the day of the accident about the unloading, saw that the load was clear and saw a signal which, consistent with prior experience, he understood to mean "go", saw the load was still clear and then moved. Mr. Renz also saw the signal. He had worked with the deceased before. The signal was read by him as a signal to move. I cannot conclude -- 14 of 24 -- 13 that the failure to have a formalised system of signals in operation on the site was causative of the damage suffered. The system in place, at least on this occasion, was satisfactory for the task in hand. It may well have been different were the truck driver and forklift operator unused to working together. I turn to the next ground of negligence, namely, that the second defendant ought to have required the rear metal gate to be removed. The evidence is clear that the aluminium pipes came into contact with the metal gate at the end of the truck. Paint from it was found on the end of the pipes. There was no suggestion that the paint got on to the pipes prior to entering Union Steel's premises. Mr. Renz saw the pipes in contact with the metal gate. Mr. Renz said that such equipment is often used in conjunction with a tarpaulin or if side gates are to be used on the trailer. In his experience the gate is fitted into holes in the trailer and is tied down with ropes although there were no ropes tying this gate down. Mr. Renz mentioned that the gates are quite heavy and sometimes get silted in with dirt and are difficult to remove. The first defendant said that it did not occur to him to remove the gate before the deceased starting unloading. It would appear to be a complicated task to remove the gate to facilitate loading and I am not persuaded that any benefit gained on any particular occasion would not be outweighed by the disadvantages as a general policy. Finally it was submitted that it was negligent of the second defendant to permit loading/unloading to take place in a confined area. As mentioned above, I have concluded that more likely than -- 15 of 24 -- 14 not on the available evidence the deceased planned to place the pipes on the right side of the first defendant's semi-trailer and that there was no need for him to turn the forklift at all. Even if this were not so and the deceased thought it necessary to turn the forklift to take the load elsewhere or further to the right or to the left the deceased ought to have waited until the first defendant's truck was quite clear or to have directed the driver of the third truck positioned behind him to move out of the way. The deceased was the foreman. He decided how to unload the first defendant's semi-trailer, with what equipment, and where it was to take place. He directed the first defendant where to go. He had the necessary skills to drive a forklift and was seen as competent. Mr. Neish, the site manager, said that the deceased's skills were assessed when he commenced employment and he exercised them and in due course he was made a foreman. No unsafe practices involving the deceased were identified. He had the experience and authority to control the work environment with which he was concerned. As Crockett J. observed in A.W.A. v. Keogh [1985] 3 M.V.R. (Vict) 245 at p.250, a case with features similar to this, "The employer was entitled to treat the matter as one for the man doing the job." Accordingly I do not find any of the grounds of negligence argued against the second defendant made out. The plaintiff also pleads negligence against the first defendant driver. Mr. Richardson was directed by the deceased to position his semi-trailer for unloading. The obstruction on the right of his vehicle was known to the deceased. If that -- 16 of 24 -- 15 obstruction had not been there the first defendant might have looked again finally before moving off. He did look again after the deceased's wave and satisfied himself that the load was clear and caused his vehicle to move forward. It should also be remembered that the first defendant needed to keep the way ahead under observation and that he was familiar with the deceased's method of working. There was no evidence to suggest that there was anything unusual about this day. In all the circumstances I do not find that the first defendant negligently failed to keep a proper lookout. The plaintiff submitted that the first defendant negligently misinterpreted the signal given by the deceased. There is little more that needs to be added about the signal to what I have set out above. It was not the case that only the first defendant gave evidence of seeing it. Mr. Renz did, was familiar with the deceased's work and interpreted it in the same way as the first defendant. I can discern nothing negligent in the ·first defendant's response to the deceased's signal. As to the final submission that the first defendant ought to have removed the metal gate from the truck - it was not a practice and it was for the deceased to direct that this be done if he thought it necessary. He had the necessary skills in relation to unloading and had the authority to direct it. It was not negligent in the first defendant to fail to remove it. What happened on that afternoon was a tragic occurrence. It is, of course, idle to speculate as to what actually happened in -- 17 of 24 -- 16 the brief moment when Mr. Renz and Mr. Lenz were not looking. Mr. King referred to the rear-wheel steering mechanism of a forklift which can cause it to turn very quickly. An accidental touch to the wheel or a miscalculation as to how fast the semi-trailer would move on seem not unlikely explanations. The fact remains that the load was clear of the truck but had not been dropped immediately on clearing it, and, that for whatever reason, the deceased turned the forklift slightly so that the end of the pipes came into contact the with tailgate on the semi-trailer. The deceased must be regarded on the evidence as having been the author of the event giving rise to his death. If I am incorrect in all or any of these findings, the issue of quantum has been agreed between the parties. I have perused counsels' advices on apportionment between the plaintiff and her son and regard that apportionment as proper whereby the infant son born on 18th December, 1985 was to receive $57,000 and the widow $157,000. There will be judgment for the first defendant and the defendant by election against the plaintiff. I will hear counsel as to costs. -- 18 of 24 -- IN THE SUPREME COURT OF QUEENSLAND O.S. No. 45 of 1993 IN THE MATTER of the Succession Act 1981 as amended - and - IN THE MATTER of the Will of BURTON WILLIAM BEAUMONT late of 134 Bramston Street, Tarragindi, Brisbane in the State of Queensland, Retired, Deceased - and - IN THE MATTER of an Application by BEVERLEY MARION DEAN under Part 4 of the said Act REASONS FOR JUDGMENT - WHITE J. Delivered on the 17th day of February, 1993 Today is the first return date for directions in an application by Beverley Dean for provision out of the estate of her late father, Burton William Beaumont who died on 15 April 1992 pursuant to Part IV of the Succession Act 1981. The executor, the applicant's brother, has filed a summons also returnable today seeking an order that the applicant provide security for the estate's costs of the proceedings. By cl. 3 of his will dated 24 January 1992 the testator provided:- "3. I GIVE the whole of my estate to my Trustee UPON TRUST: (a) As to a one-fifth share thereof to my daughter BEVERLEY MARION DEAN PROVIDED THAT at the date of my death EITHER her spouse LESLIE DEAN has predeceased me OR that my said daughter is no longer legally married to or living with the said LESLIE DEAN. In the event that the said LESLIE DEAN has not predeceased me and that my said daughter BEVERLEY MARION DEAN shall still be married to the said LESLIE DEAN THEN the aforesaid one-fifth share of my estate shall be held by my -- 19 of 24 -- Executor UPON TRUST to be divided equally amongst those of the children of my said daughter BEVERLEY MARION DEAN who survive me upon their attaining the age of twenty-one years. (b) As to the rest and residue of my estate to be divided equally amongst those of my children BURTON JAMES BEAUMONT, BARBARA ANNE BEAUMONT, KAY LYNETTE BEAUMONT and GAY SUSANNE BEAUMONT who survive me." The applicant is the third of the testator's five children. The estate when realised will be no more than $300,000. The applicant is aged 36 years, is married to one Leslie Dean and has four children aged between 14 years and 2 years. Her husband is presently unemployed. She does not reveal when he last was in gainful employment but says that neither of them have any trade or professional qualifications which could assist in gaining employment. As is apparent from the terms of the will, the issue is the applicant's husband. At one time, such a clause in a will might well have been subject to close scrutiny as being in part against the institution of marriage. Such considerations no longer in my view should concern the court. The applicant deposes to strained relationships between her husband and the testator from the time of the engagement to marry. The applicant conveys the impression that it was solely due to her father being a Scotsman and the future son-in-law being an Englishman that caused this state of affairs. The applicant married in 1977 and whilst she apparently continued to have a satisfactory enough relationship with the testator, contact between her husband and the testator was sought to be avoided. There was a violent argument in 1984 between the testator and her husband and property belonging to the testator and his wife was damaged and gave rise to an order in the -- 20 of 24 -- 3 Magistrates Court that he keep the peace and be of good behaviour for 12 months. The applicant continued to see the testator but avoided speaking of her husband to him. In her opinion the testator's attitude was not warranted. She continued to see her father until his death. The executor deposes that Leslie Dean - " ... has in the past wasted substantial sums of money in gambling and the consumption of alcohol. I have no reason to suppose that he has changed his ways. In particular I am able to say that: a. Since I have known Leslie Dean, and at least in the last ten (10) years, he has been drinking alcohol on the majority of occasions when I have seen him. b. On 4th April, 1984 he damaged windows, gardens and a door at my parents residence and verbally abused and threatened my parents, myself and my family. He was completely drunk on this occasion. His actions on that date centred on an argument over a loan which was made by my sister Barbara to him and his wife. I do not know the amount of that loan, but I am informed by Barbara and verily believe that this loan still has not been repaid. c. On my visits in the past to the home of Leslie Dean I have frequently seen racing form guides. I recall my sister Beverley commenting to me some years ago on the trouble caused at home by Leslie's gambling on horses." The executor goes on to suggest that Leslie Dean has involved himself inappropriately in the matter of the will in as much as the applicant lodged a caveat against the grant of probate and Leslie Dean had an active role in maintaining that caveat. It was, in due course, removed by consent and the applicant was ordered to pay the costs by order of Callinane J. on 26 November 1992. I should note that the executor's summons and affidavit was faxed to the applicant's solicitors late in the afternoon of 4 -- 21 of 24 -- 4 February 1993. There has been sufficient time for the applicant to make some response to the allegations about her husband in the affidavit. Indeed, an affidavit was received this morning from the applicant's solicitors dealing with the applicant's capacity to pay the costs ordered by Cullinane J. The applicant and her husband rent a Housing Commission home, have few assets and live on social security of about $400 per week. If any costs order is made against her she will have great difficulty in satisfying it. It is submitted for the executor that an order is unlikely to be made either because the testator has made proper provision for the applicant or because s. 41(2)(c) of the Succession Act permits the court to refuse to make an order because an applicant's circumstances are such as to make such refusal reasonable. There is no suggestion that the applicant seeks more than one-fifth of the estate out right. The executor does not seek to deny the one-fifth share being held on trust for her children. The real issue, it seems to me, is whether the testator when he made the disposition set out in cl. 3(a) of his will was acting as a wise and just father to use the well-known phrase in Bosch v. Perpetual Trustee Coy. Ltd. [1938] A.C. 463 at p. 478. To relieve a person of certain expenses of life by, for example, providing a house or for a child's education may be regarded as making proper provision in the circumstances of the case. The testator has turned his mind to this matter quite apparently. He has not rested content with the provisions of the Trust Act but has spelled out in cl. 4(e) and (f) that the trustee might -- 22 of 24 -- 5 make an advance to an infant beneficiary or applied the fund for an infant's benefit. This might include the provision of a home for the family or the payment of education expenses and a maintenance allowance to the applicant for the children. It has however been submitted on behalf of the applicant that on a more detailed investigation of the facts that the testator will be shown to have been unreasonably prejudiced against the applicant's husband. I am concerned however that the applicant has made no attempt to answer the allegations of improvidence and influence levelled against her husband by the executor and, if it remains unanswered I would by no means be persuaded that the testator had not made appropriate arrangements from which the applicant would obtain benefit. If there is thought to be any family animosity resting in the executor then the Public Trustee could be appointed trustee of the children's trusts in lieu of the present executor. That, of course, will incur charges possibly not incurred if the present executor remained as trustee. In the end I have concluded that an order for security for costs ought not to be made against the applicant because of the range of orders which in practice might be made in an application under the Succession Act. Even if the applicant is unsuccessful the court may well be persuaded that no order for costs is the appropriate order, see the kinds of orders often made set out in Davern Wright, Testators Family Maintenance in Australia and New Zealand, 3rd ed., at pp. 173 et seq. Accordingly the summons for security for costs is dismissed. -- 23 of 24 -- 6 Directions are made as per draft including the remitter of the action to the District Court. I will hear submissions as to the costs of the application for security for costs. -- 24 of 24 --