Indjic v Stojanovic

HIS HONOUR: In this case, the Plaintiff, Stoja Indjic, seeks a family provision order out of the estate of Drago Stojanovic (the deceased). A family provision order is one made by the Court, under Chapter 3 of the Succession Act 2006 (NSW) (the Act) in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.

The proceedings were commenced by Summons filed 14 November 2018. The hearing commenced on 17 February 2020 and concluded within the two days it had been allotted.

The Defendant in the proceedings is Borislav (‘Boris’) Stojanovic, who is a now adult child of the deceased. In clarifying the particulars of the relief that the Defendant sought in response to the Plaintiff’s claim for provision, he consistently stated that no provision should be made for the Plaintiff and that her claim should be dismissed. He continued to make that submission at the hearing. In addition, he argued that the Plaintiff should pay his costs of the proceedings in the event that she is unsuccessful.

The matter had been in the Family Provision List on a number of occasions, for directions, the first occasion being on 8 February 2019, when Mr K Morrissey of counsel appeared for the Plaintiff and when the Defendant appeared in person. On that occasion, and on each subsequent occasion that the matter was before the Court, the court explained to the Defendant that the matter appeared to be factually, and legally, complex, and that he could be at some disadvantage by appearing without legal representation. It was repeated that he should seek the assistance of lawyers in the conduct of the proceedings on behalf of the estate, as, without any disrespect intended, he lacked the professional skill and ability resulting from an education in, and understanding of, the relevant law and procedure and, also lacked the objectivity and emotional distance from his own case.

On each occasion, that the matter has been listed for directions, the Defendant confirmed that he would not obtain legal representation, and that he wished to continue to act for himself. It was difficult to know, precisely, what had driven that decision, as the estate has a gross value in excess of $1 million but it appeared to be the result of the exercise of a free and informed choice made by the Defendant.

Even at the commencement of the hearing, he stated at Tcpt, 17 February 2020, p 1(42–44):

Despite his appearance at the pre-trial directions hearing on 10 December 2019, when the matter was listed, for hearing, in the Family Provision Running List commencing on 17 February 2020, and despite being provided with a written copy of the directions made on that date for the orderly conduct of the hearing, the Defendant failed to comply with any of the directions made. However, at the commencement of the hearing, a document headed “Affidavit of Boris Stojanovic 18/12/2019”, was handed up and, without objection, relied upon.

A Schedule of Assets and Liabilities prepared on behalf of the Plaintiff, was marked Ex JS 1. (I shall return to these documents later in these reasons, the contents of both of which required amendment.)

In view of the fundamental right of a litigant to appear in person, enshrined in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.1(1), the Court accepted the Defendant could continue without legal representation.

At the hearing, the Defendant, again, appeared without any legal representative and without the assistance of a “McKenzie friend” (that name being derived from the decision of the English Court of Appeal in McKenzie v McKenzie [1971] P 33).

The Court has a duty to ensure that the trial is fair and determined in accordance with the law and with the need for as cheap and efficient judicial determination as is feasible. Of course, this duty applies whether the Defendant has been unable to obtain legal representation, or if a party appears self-represented by his, or her, own choosing, or where the party is represented: Tomasevic v Travaglini (2007) 17 VR 100 at 129–130 [139]–[142]; [2007] VSC 337 at [139]–[142] (Bell J); see also MacPherson v R (1981) 147 CLR 512 at 546–547 (Brennan J); [1981] HCA 46.

The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94–95 (The Court); Hamod v New South Wales [2011] NSWCA 375 at [309]–[316] (Beazley JA, Giles and Whealy JJA agreeing). Of course, the application of the general principle varies depending on the particular circumstances of the case.

Yet, to proceed without legal representation, or to dismiss one’s lawyers during the course of proceedings, should not be an advantageous procedural step. (There was no suggestion, in this case, that the Defendant was attempting to manipulate the system.)

The Defendant was told that the Court’s duty was not to advise him of how to conduct his case; nor to advise him of how his rights should be exercised; nor to become his advocate or stand in the shoes of legal representatives had they been retained. Nor would the Court unduly interfere with the conduct of the trial on his behalf. Any assistance would be proportionate in the circumstances and would be given not for the purpose of affording an advantage to him as a self-represented litigant: Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) at 26–27 (Samuels JA); Cicek v Estate of late Solomon [2014] NSWCA 278 at [126]–[130] (Ward JA, Meagher and Barrett JJA agreeing); Tomasevic v Travaglini at [139]–[142] (Bell J); endorsed in Pollock v Hicks [2015] NSWCA 122 at [91] (Gleeson JA, Macfarlan and Emmett JJA agreeing).

The Defendant was also told that the duty to ensure a fair trial applies to both parties. Any assistance given to him would be limited to what was necessary so far as was reasonably practicable, to overcome the procedural disadvantages that he faced as a self-represented litigant by reason of not being legally trained: Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40, at [74] (Buss P, Murphy and Vaughan JJA).

As he had been told at different directions hearings, he was also told that the matter was one of some complexity, and that if he chose to represent himself, he would have to accept the consequences of that choice and that the Court would not become integrally involved in the formulation of the Defendant’s case on his behalf.

The Defendant was also informed that the Court would not permit him to give evidence from the bar table without oath or affirmation. The Court then went on to explain how the case would proceed, commencing with the reading of the affidavits onto the Court record; informing him of his right to object to any part of the affidavit evidence relied upon by the Plaintiff that he might regard as inadmissible; an explanation of the order of calling witnesses; informing him of his need to enter the witness box to be cross-examined (as he had been asked to attend for cross-examination); his right to cross-examine the Plaintiff; and to provide an explanation of the consequences of not cross-examining a witness. The guidance did not extend to advising him of how his rights should be exercised.

The Court also provided him with an explanation of the role and purpose of cross-examination, and the necessity for him to put to each witness whose affidavit was read, any aspects of her, or his, evidence that he proposed to contradict or claim was false, so that he, or she, would have an opportunity to provide an explanation. (Clearly, he seemed to take account of what had been said to him but, unsurprisingly, he struggled with what was required for an effective cross-examination.)

The Defendant was shown the Outline of Submissions that had been received from counsel for the Plaintiff and he confirmed that he, too, had received a copy. A copy of the relevant sections of the Act upon which he would need to address the Court, including ss 57, 59 and 60, was provided to him. He was told that there was a difference between evidence and submissions and that what he said during submissions would not be regarded as evidence.

The Defendant did not provide any adequate reasons for not having complied with the directions of the Court regarding the service of updating affidavits or the provision of an outline of submissions in writing other than that he had “misunderstood the instruction” I had given: Tcpt, 17 February 2020, p 3(50) – p 4(36). He was also unable to provide a proper explanation for not responding to an email sent on 11 February 2020, at my request, by my Associate, to him and to counsel for the Plaintiff reminding each of the directions made which, at least in part, had not been complied with: Tcpt, 17 February 2020, p 4(38) – p 5(11).

The parties were also informed that the Court would not devote unlimited time to listening to unmeritorious arguments, or irrelevant cross-examination by either side: Antoun v R (2006) 80 ALJR 497 at 502 [22]; [2006] HCA 2 at [22] (Gleeson CJ).

As has been noted, “… the right of a party to be given an opportunity to be heard … includes prior notice of the issues to be addressed, an opportunity to call evidence, an opportunity to make submissions and the right to have his or her evidence and submissions given appropriate consideration by the decision-maker. Whether such opportunities have been made available is a different question from whether they have been availed of. A party who has a reasonable opportunity to present his, or her, case and who fails to make the most of it, cannot later be heard to complain that there has been procedural unfairness”: Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568 at 579 [50]; [2014] NSWCA 293 (Basten JA, Barrett and Ward JJA agreeing).

Both parties were referred to my decision in Sadiq v NSW Trustee and Guardian [2015] NSWSC 716 and the decision of the Court of Appeal in Sadiq v NSW Trustee and Guardian (2016) 14 ASTLR 577; [2016] NSWCA 62, in which the appeal was dismissed. A copy of each of the reasons of each Court was provided to the Defendant (because he may not have had access to New South Wales Caselaw).

I have no doubt that the Defendant is an intelligent man. He seemed to have no difficulty understanding what was said to him. Indeed, in response to a number of questions, the Defendant confirmed that he understood the process that he had to follow: Tcpt, 17 February 2020, p 5(50) – p 6(20).

It is never easy to act as a litigant in person, particularly against experienced legal opposition. However, the Defendant displayed an insight into the case that he was required to present and he was able to marshal some arguments in support of his case. In addition, throughout the proceedings, he was polite, calm, and he acted with appropriate respect to the Court and to counsel for the Plaintiff. He properly participated in the hearing and his presentation of the case in court has not contributed to the assessment of his credit on the facts.

Naturally, it was necessary for there to be some degree of tolerance and assistance, within the constraints of the duty to ensure a fair trial to both parties, given to the Defendant as he was clearly without any legal knowledge or training. Overall, I am satisfied that he understood the nature of the proceedings and that he conducted them as well as he could. As will be read, he has been successful.

I should also note that Mr Morrissey of counsel, who appeared for the Plaintiff, did not take pedantic objections to the Defendant’s affidavit evidence and, even though he might have objected to some matters, he did not do so. Furthermore, during his cross-examination, he questioned the Defendant politely and calmly, and he allowed the Defendant a reasonable opportunity to answer the questions put to him. Throughout the proceedings he treated the Defendant with respect, and, if I may say, fairly.

Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. The Plaintiff asserted in her affidavit of 4 February 2019, and it was submitted in counsel’s written Outline of Submissions that she was a person with whom the deceased was living in a de facto relationship at the time of his death: s 57(1)(b) of the Act.

A reading of the Defendant’s first affidavit affirmed on 30 May 2019, leads me to conclude that he disputed that the Plaintiff was an eligible person under s 57(1)(b) of the Act. At the commencement of the hearing, he confirmed that he proposed to dispute her eligibility on this ground.

Then, when the question of other bases of eligibility was raised by the Court, counsel for the Plaintiff submitted that if eligibility under s 57(1)(b) was not established, he would be submitting that the Plaintiff is a person (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who was, at that particular time or at any other time, a member of the household of which the deceased person was a member: s 57(1)(e) of the Act. Later still, on the second day of the hearing, counsel for the Plaintiff attempted to make the further alternative submission that the Plaintiff was a person with whom the deceased was living in a close personal relationship at the time of the deceased’s death: s 57(1)(f) of the Act; Tcpt, 18 February 2020, p 91(14–18).

The Plaintiff had not, previously, relied upon either alternative basis of eligibility. There was no reference to “dependency” in the Plaintiff’s evidence or in her counsel’s written Outline of Submissions. Even if there had been, counsel had not mentioned (prior to his written Supplement to the Plaintiff’s Case Outline received at the conclusion of the first day of the hearing) s 59(1)(b) of the Act, which provides in the case of a person who is an eligible person by reason only of sub-paragraph (d), (e) or (f), of the definition of “eligible person” in s 57, having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application. (Indeed, he had not mentioned “factors which warrant the making of an application” at all: Tcpt, 17 February 2020, p 8(23–36).

I shall return to this aspect, and the consequences of the lateness of the proposed reliance on other grounds of eligibility, by counsel for the Plaintiff, later in these reasons.

It was not in dispute that the Plaintiff commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act: Tcpt, 17 February 2020, p 9(12–18).

As the deceased left a Will that dealt with all of his property, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

A family provision order may be made in relation to property that is not part of the deceased’s estate, but is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5). “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

In this case, the Plaintiff did not seek an order designating property as notional estate of the deceased. Counsel appreciated that the Court must not make a notional estate order unless it is satisfied that (a) the deceased person left no estate; or (b) the deceased’s estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made; or (c) provision should not be made wholly out of the deceased’s estate because there are other persons entitled to apply for family provision orders or because there are special circumstances: s 88 of the Act.

The Defendant did not state that he was going to make any application for commission, or percentage, for his pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).

It is next convenient to set out some background facts that are not the subject of dispute between the parties. To the extent that any are in dispute, what follows should be regarded as the findings of the Court.

The deceased was born in April 1939 and died on 27 June 2018 aged 79 years.

The deceased was married to Bosiljka Stojanovic. The marriage was dissolved by a divorce order made in June 1998, which became absolute in July 1998, and which terminated the marriage.

There were two children of the marriage, being Dragoslav (called “Rodney”) Stojanovic, who was born in May 1965, and the Defendant, who was born in Australia, in February 1972. Three members of the family had come to Australia from the Socialist Federal Republic of Yugoslavia (as it then was) in 1969.

There is evidence that in September 2015, an Apprehended Violence Order against Rodney was made. It appears, also, from the evidence, that Rodney was made bankrupt as a result of a debtor’s petition, on 14 December 2018 and that his trustee is the Official Trustee in Bankruptcy. He is currently an undischarged bankrupt. He played no part in the proceedings.

The deceased’s last Will was one made on 28 February 2007, Probate of which Will was granted, by this Court, to the Defendant on 21 September 2018.

In that Will, the deceased relevantly:

At the commencement of the hearing, it was confirmed that “MOJA BADA DAME PRATI”, in the Serbian language, is not a person. (The Defendant asserted that the meaning of the words was “my friend and cleaner” and that the person referred to was the Plaintiff: Tcpt, 17 February 2020, p 11(32–41).)

The Plaintiff, by her counsel, denied that if the words meant “my friend and cleaner”, the person referred to was not her, with the result that there is no provision made for her in the Will of the deceased. (The dispute does not have to be determined as the Plaintiff asserted that no provision was made for her in the Will. The Defendant has not paid that amount to her.)

There was really no dispute that the Newtown property has been registered in the name of the Defendant. The Transmission Application dated 2 October 2018 revealed that he was seeking to be registered on title “being entitled as executor of the will … of the deceased registered proprietor … pursuant to probate …”: Tcpt, 17 February 2020, p 12(50) – p 13(40); Ex P1/99.

The Plaintiff annexed, to her Affidavit affirmed on 4 February 2019, a copy of the Reasons for Decision of the New South Wales Civil and Administrative Tribunal, Guardianship Division, in which the Public Guardian had been appointed as the guardian of the deceased “with the authority to make decisions about his accommodation; services; health care and medical and dental consents”. The Tribunal also committed the estate of the deceased to the NSW Trustee and Guardian.

The application to the Tribunal had been made by a social worker at the Royal Prince Alfred Hospital. Present at the hearing of the applications was the Plaintiff, who was identified as a “former partner” and she was a party to each application (although the Plaintiff’s name was misspelled as “Ms Incic Stognak”. The Defendant did not appear to dispute that the Tribunal was, indeed, referring to the Plaintiff: Affidavit, Boris Stojanovic, 30 May 2019). There was no evidence that the Defendant had been served with either of the applications and he was not referred to as a party to either application.

The Defendant lodged an “Application to Review or revoke a financial management order” with the Tribunal on 28 November 2016. In that application, he did not identify any “other people involved” as required.

On 31 March 2017, the New South Wales Civil and Administrative Tribunal, Guardianship Division, heard and dismissed an application, made by the Defendant, “to review the financial management order made on 10 October 2016 in relation to the estate” of the deceased. The Tribunal had made an order appointing the NSW Trustee and Guardian as the deceased’s financial manager. At the date of that hearing, the Tribunal found that the deceased was “unable to speak to the Tribunal or to provide any views”. The Tribunal had been informed by Ramila Pokharel, Director of Care at the Holy Spirit Aged Care Facility, in which the deceased was then a resident, that he “is physically very unwell, both physically and cognitively”.

The Defendant gave evidence, before the Tribunal, that the deceased had “promised him that he could live in the Newtown property rent-free (or, at most, paying less than commercial rent) and has left the Newtown property to [the Defendant] in his will”: Tribunal’s Reasons for Decision at [4].

At a directions hearing on 10 December 2019, at which the Defendant was present, I directed the Plaintiff to provide an Agreed Schedule, that contained:

As stated, counsel for the Plaintiff did provide such a Schedule to the Court. A copy had been provided, belatedly, to the Defendant.

There was, initially a dispute that the Erskineville property was owned jointly with the deceased’s former wife, and had passed to her by survivorship. The Defendant had asserted that they had held the property as tenants in common. However, a copy of the Certificate of Title, when shown to him, satisfied him that the title to the Erskineville property had been held as joint tenants and that the deceased’s former wife, the Defendant’s mother, as the surviving joint tenant, was entitled to be registered as the sole proprietor of that property.

The Defendant gave evidence that the value of the Erskineville property was $1,300,000 (although had it been relevant, the maximum value of the deceased’s interest in it, if designated as notional estate, on the basis of that value, would have been $650,000). In the Defendant’s affidavit of 30 May 2019, he put the value of the half-share at $650,000. However, in his Affidavit of 18 December 2019 (attached to Ex JS1), he asserted that the half-share was valued at $625,000. (Any issues about the Erskineville property were really irrelevant, as the Plaintiff had not made any claim that the deceased’s interest, as joint tenant, should be designated as notional estate: Tcpt, 17 February 2020, p 19(09–27).) Had she done so, the deceased’s former wife, of necessity, would have had to be joined as a party/Defendant to the proceedings.

The Defendant acknowledged that the Serbian property has a value of $40,000, but added that “… I am unsure about the legal procedure in obtaining the property as it would be delayed and relatively expensive …”. A family provision order may be made in respect of property situated outside New South Wales when, or at any time after, the order is made, only if the deceased was, at the time of death, domiciled in New South Wales: s 64 of the Act.

There was no dispute that a practical problem would arise in making an order for provision out of the Serbian property, and presumably, for this reason, neither party sought such an order. In any event, the Defendant, and his brother, Rodney, are entitled to this property under the terms of the deceased’s Will.

The Defendant annexed a copy of a bank statement of an account held in the name of the deceased for the period 20 July 2018 and 31 August 2018 that revealed a credit balance of $19,576. There was also another account with a credit balance of $207. There was a suggestion from the Defendant that the money in that account had now been expended: Tcpt, 17 February 2020, p 17(18–32). It is, ultimately, unnecessary for present purposes to determine whether this is so.

The Defendant gave evidence that the cost of memorial work on the deceased’s grave was $10,800, of which $4,000 had been paid as a deposit, and that the balance of $6,800 had been paid by the deceased in November 2012. However, funeral costs of $3,525 had not been paid and the Defendant was repaying this amount by an instalment agreement entered into with the Simplicity Funerals in July 2018 and had continued to make those instalments between August 2018 and 20 March 2019. He said that he had made the payments of the instalments out of his Newstart allowance but had reimbursed himself out of the estate: Tcpt, 17 February 2020, p 21(07) – p 22(25).

The Defendant also gave evidence that for the financial year ending 30 June 2018, there were Council rates of $1,186 outstanding and that for the financial year ending 30 June 2019, there were Council rates of $1,651 outstanding. Some of these rates had been paid, although as at May 2019 some amounts were still owed. Other liabilities were said to be $179 (to Energy Australia), $148 (to Sydney Water Corporation) and $2,073 to the Supreme Court for the filing fee of the Summons for Probate (an application for the waiver of which was refused on 27 March 2019).

During the course of the hearing, the parties reached agreement that the estate of the deceased, at the date of hearing, consisted, almost entirely, of the Newtown property which had a value of $1,250,000. There was remaining cash in bank of $9,500. The total gross value of the deceased’s estate at the date of hearing was, therefore, $1,259,500. (I have omitted a reference to cents and will continue to do so.)

The agreed liabilities of the estate were said to include $103,328, which was said to be the capital and interest payable to the nursing home at which the deceased had resided prior to his death. On the second day of the hearing, the amount said to be owing to Catholic Healthcare was $91,282 and an additional amount of $11,999 was payable as interest on the amount owing: Tcpt, 18 February 2020, p 88(47) – p 91(06); Ex P2.

(The Defendant asserted that he was in dispute about the amount and thought that the debt might be limited to $80,000. Since the lower estimate has not been agreed by the nursing home, I shall use the higher estimate for the purposes of determining the value of the distributable estate at the date of hearing.)

It was agreed that if the Newtown property were sold, the estimated costs and expenses of sale would be $38,125. It follows that, without any deduction of the costs of these proceedings, the value of the estate out of which an order for provision could be made was $1,118,047.

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.

As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317 at 330 [54]; [2016] NSWCA 222 at [54]:

However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18]. I have made this statement, many times.

The Plaintiff’s solicitor gave evidence that the estimated costs of the Plaintiff, calculated on the ordinary basis, of the proceedings, were $65,000. He also gave evidence that “[p]ayment of the plaintiff’s legal costs is subject to a successful outcome in the proceedings”.

The Plaintiff’s solicitor did not disclose the terms of the conditional costs agreement, but counsel, in answer to a question from the Bench, and after taking instructions, stated, without objection, that the Plaintiff, if unsuccessful, would have to reimburse her solicitors for disbursements they had paid ($5,663): Tcpt, 17 February 2020, p 27(39) – p 28(13).

There was no suggestion that there was an uplift fee included in the estimate of the costs and disbursements provided by the Plaintiff’s solicitor.

The general rule in relation to the costs of self-represented litigants has been set out by Campbell JA (Tobias and Young JJA agreeing) in Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359 at 396 [182]–[183], [185]; [2011] NSWCA 40 at [182]–[183], [185], as follows:

Mason CJ, Brennan, Deane, Dawson and McHugh JJ had held in Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14, that the general rule means that a self-represented person is not entitled to recover compensation for time spent in preparing and conducting the case (at 412–414); that an order for costs is ‘confined to money paid or liabilities incurred for professional legal services’ (at 409), and that: ‘costs are awarded by way of indemnity ... for professional legal costs actually incurred in the conduct of litigation’ (at 410). Furthermore, that unless allowed for in the relevant legislation or rules, it is not permissible to treat, as a disbursement, any loss of earnings incurred by a litigant in presenting and conducting a case (at 417).

In Dive v Lin [2017] NSWLEC 153, Preston CJ opined at [54]:

Expenses that have been found to be properly recoverable include court fees: Oscar v Traynor [2008] FamCAFC 158 at [85] (The Court); transcript costs: Oscar v Traynor at [85] (The Court); expenses for serving documents: Winter v Fleeton [2002] WASCA 73 at [23] (Wallwork J); fees for searching registers, such as an ASIC search fee: Re Sullivan and Department of Industry, Science and Technology (1998) 51 ALD 767 at 780 [45] (Senior Member Bayne); incidental expenses in relation to photocopying, postage and telephone and facsimile transmissions: Shephard v Blueberry Farms of Australia (Corindi) Ltd (2001) 162 FLR 339 at 358 [66]; [2001] FMCA 2 at [66] (Driver FM); Cary v Owners of Strata Plan No 7241 [2002] FMCA 18 at [17] (Driver FM).

Expenses which have been held not to be recoverable include travelling costs: Oscar v Traynor at [87] (The Court); Farquar v Farquar (No 2) [2008] FamCA 682 at [5]–[8] (Burr J); Cachia v Hanes at 417 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ); parking costs: HRDW v HSJL [2006] FamCA 257 at [9] (Warnick J); and meals: Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838 at [14] (Bryson J).

The parties were able to agree that, for the purposes of the hearing, the amount that should be taken into account, for the Defendant’s costs, was $500: Tcpt, 17 February 2020, p 29(10–25).

It follows that if an order were made for the costs to be paid out of the deceased’s estate, the net distributable estate, out of which an order for provision could be made, is about $1,052,500: Tcpt, 17 February 2020, p 30(29).

The only undisputed eligible persons are the former wife of the deceased, and their two, now adult, children. Of those, only the Defendant has given evidence.

There was evidence given by the Plaintiff’s solicitor, that notice of the Plaintiff’s application, and of the Court's power to disregard the interests, was served on the deceased’s former wife and upon Rodney, in the manner and form prescribed by the regulations or rules of court. Whilst the notice should have been served by the Defendant, he did not do so, although he gave evidence that “I am in co-operative discussion with [Rodney] and my mother as to who may hold the most legal entitlement to [the Erskineville property] in respect of his bankruptcy and am yet to decide on the most appropriate course of action in regards to distributing the property”.

The Defendant also said, without objection, from the Bar table, in answer to a question from the Bench, that he had told them about the proceedings: Tcpt, 17 February 2020, p 37(33–42).

In all the circumstances, the Court can disregard the interests of the deceased’s former wife, but as Rodney is a beneficiary named in the Will of the deceased, the Court is not entitled to disregard his interests. There was evidence, however, that Rodney’s relationship with the deceased was not a close one.

The Defendant gave some evidence about his own financial resources and needs. As a beneficiary, the Court cannot disregard his interests in determining the Plaintiff’s claim.

Counsel for the Plaintiff relied upon a copy of hospital records that included a reference to the Plaintiff being described in a number of different ways. For example, in a number of the records, over a period of years, well before the death of the deceased, included in Ex P1 (the Plaintiff’s Tender Bundle), “Stogank Incic” was described as the Emergency Contact or the Person to Contact; in others, she was described as the “Next of Kin”; in another, she was described as “partner” or as “Female friend/partner Stojanka visits” (Ex P1/19); she was also described as “Life Partner” (Ex P1/35). (In the last reference “Life Partner” at Ex P1/35, is shown as “sawyer stojanovic”. It was assumed that when “sawyer” appeared in the medical records, it was a reference to the Plaintiff.)

In addition, there were Progress Notes, from the Catholic Healthcare Aged Care facility that contained the following passages:

It can be seen from the above notations that there are different descriptions of the Plaintiff. Whilst the medical records were said to be admissible under s 69 of the Evidence Act 1995 (NSW) (and the tender was not objected to), those medical records do not disclose the identity of the author, or the identity of the person who provided the description noted. In other words, it is not known whether the information was given by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact. In addition, the information that was given may have been inaccurately transcribed, may have been open to interpretation as to what was said or meant, and may not be comprehensive. It may also have involved a conclusion about the relationship of the Plaintiff and the deceased, the factual basis of which has not been disclosed. It may have also involved an impressionistic assessment, the basis of which was not disclosed.

Naturally, consideration has been given to the records relied upon by the Plaintiff, but they are only part of the mosaic of what was said to be her relationship with the deceased as a whole and as at the time of his death.

There was no dispute that the onus of satisfying the Court that she was a person with whom the deceased person was living in a de facto relationship at the time of his death, rested with the Plaintiff. Similarly, to the extent that she was permitted to rely upon other grounds of eligibility, she would have had to establish dependency and membership of the household, or that she was a person with whom the deceased person was living in a close personal relationship at the time of the deceased's death, and, in either case, factors which warrant the making of the application.

Credit findings assume a greater significance in a case such as this one. Because of the position of the parties and the witness, the Court is required to determine on the balance of probabilities, taking into account s 140(2) of the Evidence Act, which version is the more likely and plausible. It is also the case that a de facto relationship means a relationship which exists in fact and that is established by determining what the parties to the alleged relationship are doing. As well, it is important to note the words “at the time of the deceased person's death” in s 57(1)(b) of the Act.

The oral evidence about the relationship of the Plaintiff and the deceased came, primarily, from the Plaintiff. On the question whether I accept her evidence, I remember that in Thomas v Times Book Co [1966] 1 WLR 911, Plowman J (as his Lordship then was), at 916, stated:

(The Defendants in that case were in the position of the Plaintiff in this case, bearing the onus of proof.)

In Richardson v Armistead [2000] VSC 551, Hansen J (as his Honour then was), at [36], stated that:

Also, I remember what Bryson AJ said in Zahra v Francica [2009] NSWSC 1206 at [1]:

Whelan J (as his Honour then was) in Webb v Ryan [2012] VSC 377 at [22], referred to the difficulties in assessing evidence in such circumstances, stating:

Also see, Ashton v Pratt (No 2) [2012] NSWSC 3 at [18] (Brereton J).

I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liq) (No 2) (2011) 297 ALR 56 at 69 [48]; [2011] FCA 1123 at [48]:

Whilst there is no rule that a witness is entitled, as of right, to give evidence in her, or his, native tongue through an interpreter, the Plaintiff did so in this case. I found her evidence, in cross-examination, vague. It seemed to me that she, and, perhaps, her legal advisers, believed that all that she had to do was assert that she had been in a de facto relationship. I did not find her to be an impressive, or entirely reliable, witness.

In any event, the evidence, overall, does not satisfy me that the nature of her relationship was a de facto relationship at the time of death:

Until the first day of the hearing, there was no other witness who gave evidence in support of the Plaintiff’s case. The witness whose affidavit was affirmed two days prior to the hearing and filed the day before the hearing commenced, was Margaret Louise Gallen, who “lived in Drummoyne, near [the Plaintiff], since about 2004”. She wrote that between about October 2016 to June 2018, she would drive the Plaintiff to the Holy Spirit Aged Care Facility in Croydon so that she could visit the deceased, often three or more times a week; that she observed that they would demonstrate affection towards each other, including kissing, hugging and holding hands.

When cross-examined, she accepted that “… in the initial stages there was - when he was able there was hugging and certain - but certainly when he, he - his condition deteriorated, it was, was different. But still holding hands, and still, still kissing”: Tcpt, 17 February 2020, p 69(34–50).

This, in my view, does not establish the existence of a de facto relationship. That is not to say, however, that it does not have any relevance as part of the whole mosaic of the relationship.

What Ms Gallen did not say may be equally important. For example, she did not say that, from her observations, she had formed the opinion that the Plaintiff and the deceased were in a de facto relationship. Moreover, when cross-examined by the Defendant, she accepted that she had not met the deceased prior to his admission into the Holy Spirit Aged Care Facility: Tcpt, 17 February 2020, p 70(47) – p 71(23). Accordingly, the period of time before the deceased’s death for her to base her evidence was relatively short.

The court, in cases involving events which occurred some period of time before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247] (Jagot J). Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to mis-state those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160 at [157] (Kenneth Martin J).

As was noted by Davies J, with whom Emmett AJA agreed, in Nominal Defendant v Cordin (2017) 79 MVR 210 at 246 [167]; [2017] NSWCA 6 at [167]:

The credibility of a witness and her, or his, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. [1985] 1 Lloyds Rep 1 at 57 (Robert Goff LJ) (“The Ocean Frost”). Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] (Black J).

There were no documents, under the hand of the deceased, or otherwise, produced, until the hearing, relied upon by the Plaintiff to corroborate her evidence. This was, to say the least, surprising, bearing in mind that the Defendant had, at all times, made it clear that the relationship asserted by her, was disputed. (In this regard, at the commencement of the second day of the hearing, the Court enquired of counsel for the Plaintiff whether there was any further evidence upon which he wished to rely, and counsel had answered that he had no further evidence: Tcpt, 18 February 2020, p 87(27–30).)

Whilst in Ex P1, there were references to the deceased’s general practitioner, no documents were produced under subpoena, or otherwise, from the general practitioner to demonstrate, for example, that when the deceased went to see the general practitioner, the Plaintiff was usually with him. Nor were there any documents that disclosed that the Plaintiff was, herself, a patient of the general practitioner in Newtown, which she might very well have been, had she “lived with” the deceased for the period that she asserted.

It is to be noted, however, that in some of the Progress Notes from Catholic Healthcare found in Ex P1, there are instances where a person (possibly the Plaintiff) accompanied the deceased to medical appointments.

For example:

Counsel for the Plaintiff accepted that the medical records that referred to the Plaintiff also included her address as being in Drummoyne, and not the address of the deceased’s home.

I must also consider the Defendant’s evidence. He gave the following evidence:

A document entitled “ED Discharge Referral” from the Royal Prince Alfred Hospital, prepared around the time of the deceased’s admission in June 2018 (Ex P1/30), contained the following passages:

Counsel for the Plaintiff did not put to the Defendant that he had been present and was the “son” referred to in the Discharge Referral. Nor did he put to the Defendant that the Plaintiff had been present and was the “partner” referred to. Nor did he attempt to clarify who had informed the author of the Discharge Referral that the person attending was the “partner” of the deceased.

I should also again refer to the Reasons for Decision of the New South Wales Civil and Administrative Tribunal dated 10 October 2016, which formed part of the Plaintiff’s evidence. The Tribunal referred to the present Plaintiff in various ways including as being the “former partner” and the “ex-girlfriend” of the deceased: see Reasons for Decision at [4], [14], [42], Appendix. The Tribunal also observed, at [4], that:

In his closing submissions, counsel for the Plaintiff referred to those reasons and acknowledged, frankly, that the Tribunal had described the Plaintiff as the deceased’s “former partner”. He submitted, by way of explanation:

This submission appeared to have been based on the explanation provided by the Plaintiff in her affidavit affirmed 4 February 2019 at par 42.

The Plaintiff makes a claim for a family provision order under Chapter 3 of the Act. The key provision is s 59. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1): s 59(1)(a). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility. There are six categories of persons by, or on whose behalf, an application may be made.

Relevantly, in this case, as has been stated, the Plaintiff relied upon s 57(1)(b) which identifies as an eligible person, a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death. I shall, first, refer to the relevant principles that apply to establish the existence of such a de facto relationship, noting that in this sub-section, the existence of that relationship does not require proof of duration of any particular length. This is not to say that in determining the question of provision, the nature and duration of the relationship will be irrelevant.

The Plaintiff’s written submissions on the issue of her eligibility were as follows:

As discussed above, and without intending any disrespect, the Defendant was not legally trained and consequently lacked an appreciation of the matters that are required to be addressed in closing oral submissions. Nonetheless, I am satisfied that the Defendant had a sufficient understanding of the case he was required to meet as to whether or not the Plaintiff had been in a de facto relationship with the deceased at the time of his death.

In his closing oral submissions, the Defendant submitted in relation to the asserted existence of a de facto relationship (reflected at Tcpt, 18 February 2020, p 125(33) – p 126(28)):

The Defendant, when asked to provide his description of the relationship between the deceased, submitted (Tcpt, 18 February 2020, p 131(25–36)):

In conclusion, the Defendant submitted (Tcpt, 18 February 2020, p 135(39) – p 136(10)):

At the hearing, as also stated earlier, the Plaintiff sought to rely upon s 57(1)(e) and s 57(1)(f) as a basis for eligibility. Whilst I permitted counsel to rely upon the former, I did not permit him to rely upon s 57(1)(f) of the Act.

Nor was it until supplementary submissions were made on the second day of the hearing that counsel for the Plaintiff referred to “factors which warrant the making of the application”. He wrote at par 5:

It is difficult to conclude that the matters asserted in (i) and (ii) had been established on the evidence. In relation to (iii), it is difficult to see, even if the facts asserted were accurate, that they go to the question of the Plaintiff’s eligibility or factors which warrant the making of the Plaintiff’s application. However, the matter in (iv), is relevant to, although not determinative of, that matter.

As stated, the Plaintiff asserted that she was an eligible person within the meaning of that term in s 57(1)(b) of the Act. Accordingly, she had to establish to the satisfaction of the Court that she is “a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death”. There is no other temporal limit in the subsection.

I have referred to counsel’s submissions on the Plaintiff’s eligibility. He did not, in his written submissions, deal, expressly under each heading, with the matters referred to in s 21C(2) or in s 21C(3) of the Interpretation Act 1987 (NSW), in which the term is defined as follows:

Section 21C(3) of the Interpretation Act, provides:

It can be seen that the nine criteria referred to may be grouped into “private” ((c), (d), (e) and (f)) and “public” ((a), (b), (g), (h) and (i)) headings. None of the matters listed is of decisive significance. The criteria are inclusive but not exhaustive. They all, however, suggest a continuing course of conduct and behaviour, not an event at a fixed point of time. No matter how close the involvement in each other’s emotional lives, a conclusion that people are a couple living together involves consideration of the circumstances in which they are living, including the places at which they are living. The test is not primarily locational, but it has a locational element: Dion v Rieser [2010] NSWSC 50 at [14] (Bryson AJ).

These criteria are no more than reminders, or indicators, of matters that possibly might be relevant in deciding the question whether the parties lived in a de facto relationship: Piras v Egan [2008] NSWCA 59 at [146] (Campbell JA, Giles and Tobias JJA agreeing). The last paragraph of the section makes clear that they are not to be weighed against each other and given individual weightings of importance. Ultimately, the criteria should be used to assist in determining whether the parties were in “a relationship as a couple”. They should not overshadow that central concept. See also Howard v Batistich [2019] FCA 525 at [69]–[71] (Robertson J).

One might argue that the inclusion of the term “living together” would require physical cohabitation at the time of the deceased’s death. The sub-section makes it clear that a common residence is not the only element of the relationship that the Court must consider, and is not necessarily an essential element to prove. To recognise that acknowledges that, sometimes, couples choose to conduct a shared life without living together. Whilst the Queensland Court of Appeal has recognised that it will be an “exceptional” case where persons who have not lived in a common residence can be considered to be “a couple living together”: FO v HAF [2007] 2 Qd R 138 at 149–150 [26]; [2006] QCA 555 at [26] (Keane JA, McMurdo P and White J agreeing); KQ v HAE [2007] 2 Qd R 32 at 38 [20]; [2006] QCA 489 at [20] (The Court), there may well be circumstances where such persons still satisfy the statutory test: Yesilhat v Calokerinos [2015] NSWSC 1028 at [34]–[41] (White J).

There is nothing in s 21C of the Interpretation Act that requires a couple who are living together to share the same household full time, or to live in one house. The concept of “living together” does not import any concept of proportion of time. Section 21C(3)(b) assumes a common residence, but does not assume any length of time. Rather, it invites an examination of its nature and duration. Furthermore, because one, or both, members of the couple may also be legally married, or in another de facto relationship at the same time as they are in the subject relationship, it is feasible that the subject relationship might involve the parties living together for only part of the relationship: Moby v Schulter (2010) FLC ¶93-447 at 85,063; [2010] FamCA 748 at [140]–[141] (Mushin J). What is important is the nature of the union (as a couple) rather than how it manifests itself in quantities of joint time.

As was pointed out by Pagone J in Re Estate of Sigg (dec’d) [2009] VSC 47 at [7]:

In reality, as with married couples, people who are in a de facto relationship live in a diversity of arrangements.

In Ingamells v Western Australian Trustees Ltd (Supreme Court (WA), 5 March 1993, unrep), the Full Court (Malcolm CJ, Rowland and Ipp JJ) quoted at 5, with approval, the following passage from the judgment of Fitzgerald J in Lynam v Director General of Social Security (1983) 52 ALR 128 at 131:

The circumstances listed in s 21C(3) of the Interpretation Act do not state what has been described as the “essence” of a de facto relationship, which is to be found in the phrase “as a couple”. Thus, once the physical, or factual, aspects, of the relationship have been examined, whether a mental ingredient also existed should be considered. That ingredient involves some commitment, by each of the parties, to their relationship. It need not necessarily be a commitment intended to last forever, or indefinitely. Nor need it be a commitment to a long-term relationship. But it should, at least, be a mutual commitment for the foreseeable future. If two people do not “live together as a couple” they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various matters listed.

The concept of a de facto relationship was discussed by Gzell J in Ye v Fung [2006] NSWSC 243 at [64]–[65] of the judgment:

As Barrett J (as his Honour then was) wrote in Petersen v Gregory; Estate Glen Alfred Petersen [2007] NSWSC 8 at [11], when considering the phrase living “as a couple”:

In s 21C(3)(a) of the Interpretation Act, “the relationship” referred to cannot mean “the de facto relationship”. As has been written by Campbell J (as his Honour then was) in Sullman v Sullman [2002] NSWSC 169 at [194], although he was speaking of s 4(2)(a) of the Property (Relationships) Act 1984 (NSW):

Common sense also dictates that a relationship may change, or develop, over time. Thus, its legal character at one point may not represent its character at another. (The Plaintiff took a global approach to what she said was her relationship with the deceased and she did not appear to recognise any difference between the beginning, and at the end, of what she described as a 25 year de facto relationship.)

Furthermore, it is not essential that there be entire harmony, entire fidelity, entire satisfaction with the relationship, or entire commitment; the degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints, grievances, and less than entire commitment are often found in personal relationships, including marriages, and are not inconsistent with a relationship of two parties having a relationship as a couple living together, but not married to one another.

The significance of qualifications of these kinds appears from passages in the leading judgment of Basten JA (Ipp and McColl JJA agreeing) in Robson v Quijarro [2009] NSWCA 365 at [14]–[16], and from passages which his Honour cited from Bar-Mordecai v Hillston [2004] NSWCA 65 at [120]–[124] (Mason P, Tobias JA and Davies AJA).

Thus, the determination of the existence of a de facto relationship is essentially impressionistic. Such a relationship only exists because of the factual circumstances of the parties, unlike marriage, where there is a legal status immediately created at the time of the public ceremony and registration.

Accordingly, the court is often required to assess multiple pieces of circumstantial evidence. If there are sufficient pieces of evidence, when viewed cumulatively, and with common sense and proper reasoning, which satisfy the finder of fact that the relationship is a de facto relationship then the statutory test is met: Scragg v Scott [2006] NZFLR 1076 at [64] (The Court). Ultimately, the conclusion as to the existence, or otherwise, of such a relationship will turn on an evaluative assessment of matters of objective fact.

Other cases make it clear that the term “de facto relationship” constitutes a single composite expression of a comprehensive notion or concept. It must be approached by considering the expression as a whole and not in several parts: Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 at 685 (Kearney J); Light v Anderson (Court of Appeal (NSW), Handley JA, 4 August 1992, unrep) at 4–5; Bar-Mordecai v Hillston at [86], [125] (Mason P, Tobias JA and Davies AJA); Hayes v Marquis [2008] NSWCA 10 at [73]–[74] (McColl JA, Beazley JA agreeing).

In reaching the conclusion about the existence of the relationship, the court must also be aware of the concept of the diversity of relationships that exist between couples within our society and must not be lulled into social stereotyping. Thus, although said in another context, I agree with Bender FM (as her Honour then was) in Dakin v Sansbury [2010] FMCAfam 628 at [13], that:

Further, as stated above, this was not the only ground of eligibility in the Act that counsel for Plaintiff attempted to rely upon at the hearing. He also wanted to submit that the Plaintiff was a person who was, at any particular time, wholly or partly dependent on the deceased, and who was a member of the household of which the deceased was a member: s 57(1)(e) of the Act.

As stated, it was only at the commencement of the hearing that counsel for the Plaintiff first raised that the Plaintiff was relying on s 57(1)(e) of the Act: Tcpt, 17 February 2020, p 7(37–42). There had been no mention of this ground of eligibility in any of the Plaintiff’s affidavits, or in counsel’s initial written Outline of Submissions served before the hearing.

The lateness of the Plaintiff’s submission was a matter of significant concern, particularly in a case such as this, where the Defendant was a litigant in person. By making such a submission only after the hearing had commenced, counsel for the Plaintiff denied the Defendant a real opportunity to properly consider the submission and, if he wished, to obtain affidavit evidence in response.

Upon my raising of these concerns with counsel for the Plaintiff, he submitted in reply, as reflected at Tcpt, 17 February 2020, p 8(34–36):

It is true, generally speaking, that counsel will not be confined to his, or her, submissions. However, as I pointed out to counsel for the Plaintiff, different considerations may apply when the other party is a litigant in person. As a matter of procedural fairness, a party should have the opportunity of meeting the case against him or her.

It was wholly unfair to the Defendant for such a matter to be raised at the eleventh hour and after the hearing had commenced. That unfairness is compounded when the litigant in person is faced with counsel experienced in this type of litigation who ought to know that litigation by ambush is no longer permitted.

In light of my comments, and to the extent that it was necessary to do so, counsel for the Plaintiff sought leave to file supplementary written submissions addressing the additional grounds of eligibility: Tcpt, 17 February 2020, p 33(33) – p 34(04).

After counsel for the Plaintiff’s application, I attempted to canvass with the Defendant the matters that had been raised. The Defendant maintained that he had given some consideration to whether the Plaintiff was wholly or partly dependent on the deceased and whether she was a member of the household of which the deceased was a member. Turning to factors which warrant the making of the application, I was not satisfied that the Defendant had considered, or properly understood, the meaning of that term as it applies to s 57(1)(e): Tcpt, 17 February 2020, p 35(35) – p 36(33).

In view of the Defendant suggesting that he could deal with the Plaintiff’s reliance upon this alternative ground of eligibility, I permitted counsel for the Plaintiff to rely on s 57(1)(e). His supplementary written submissions allowed some, albeit limited, opportunity for the Defendant to respond.

However, the evidence of the Plaintiff made it clear that she was not asserting that she had been wholly or partly dependent upon the deceased, but rather that it was he who was dependent upon her: Affidavit, Stoja Indjic, 4 February 2019 at pars 30–33; Tcpt, 17 February 2020, p 57(22–35).

I have already referred to the supplementary submissions provided by counsel for the Plaintiff, entitled “Supplementary to Plaintiff’s Case Outline”. In addition to counsel raising matters relating to s 57(1)(e) in those submissions, to which reference has already been made, he also made a submission based on s 57(1)(f) of the Act, namely that the Plaintiff she was a person who was in a close and personal relationship with the deceased at the time of his death. The intention of counsel for the Plaintiff to rely on this additional ground: Tcpt, 18 February 2020, p 91(17–42).

No explanation was provided by counsel going to the reasons why the ground of eligibility had not previously been relied upon, or why notice had not been given to the Defendant, well prior to the hearing, of the Plaintiff’s intention to do so. Whether deliberately, or by inadvertence, the Plaintiff had not based her case on that ground of eligibility when there had been more than enough opportunity to do so.

It seemed to me that a real question emerged as to whether she should be permitted to change her case to establish an alternative ground of eligibility.

It is fundamental to the due administration of justice that the substantial issues between the parties should be made clear prior to the hearing of the proceedings. In Sydney South West Area Health Service v MD (2009) 260 ALR 702 at 716 [53]–[54]; [2009] NSWCA 343, Allsop P (as his Honour then was) (Sackville AJA agreeing) commented upon what has been described as “the ambush theory of litigation”. He wrote at [53]–[54]:

The relevant principle was repeated by Rares J in Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 2) [2010] FCA 275 at [32]. His Honour reiterated that litigation needs to be “conducted on the basis that parties cannot leave footprints in the sand and must lay their cards on the table promptly and early so that all the true issues are identified and can be fairly tried in due course”. Similarly, Bergin CJ in Eq (Ward JA and Tobias AJA agreeing) said in Baffico v YMCA of Great Lakes Inc [2014] NSWCA 61 at [24]:

Putting to one side the principles to which I have referred, I am not satisfied that the facts necessary to establish this ground of eligibility had been established on the evidence that I had read. In any event, it may have been possible for the Defendant to call evidence to establish other facts. Whether it would have been possible, we shall never know as he had not been given an opportunity to do so.

In Sadiq v NSW Trustee and Guardian, I dealt with the meaning of the term “close personal relationship”, at [238]–[249]. I shall not repeat what I wrote there as I am not satisfied that all of the facts to base reliance upon the ground of eligibility have been established by the Plaintiff.

Finally, the Court would need to be satisfied that the raising of this ground of eligibility could work no injustice to the Defendant. I am satisfied that the lateness of the submission in relation to s 57(1)(f) would have occasioned significant prejudice to the Defendant. The Defendant, as discussed above, was not legally trained. It would have been extremely difficult, nigh on impossible, for him to address complex factual and legal submissions (not to mention the lack of opportunity to adduce relevant evidence) without any prior notice of the intention to rely upon the ground of eligibility.

All these matters led me to the conclusion that the Court should not permit the Plaintiff to rely upon this ground. For these reasons, I did not allow counsel for the Plaintiff to rely on an additional ground of eligibility found in s 57(1)(f).

In the case of an applicant who falls within ss 57(1)(d), (e) or (f) of the Act, the Court must next consider, and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application: s 59(1)(b) of the Act.

In requiring a person who falls within one, or other, of these subsections to satisfy the court that there are such factors, the Act distinguishes between two classes of eligible person. As was written by McColl JA (Gleeson and Simpson JJA agreeing) in Yee v Yee [2017] NSWCA 305 at [111]–[112]:

The Act does not specify the “factors which warrant the making of the application”. As Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138 at [16], “[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement”.

In considering the meaning of what he described as “this poorly conceived and clumsily expressed subsection” in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), McLelland J (as his Honour then was) said, in Re Fulop, Deceased (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241 at 252 (Priestley JA, Hope JA agreeing)) that the factors are factors which, when added to facts which render the applicant an eligible person, give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.

I have dealt with the meaning of the phrase in other cases, one of which is Doshen v Pedisich [2013] NSWSC 1507. I shall not repeat what I wrote in that case: see [69]–[81].

In Sassoon v Rose [2013] NSWCA 220 at [15], an application for leave to appeal, Meagher JA (Gleeson JA agreeing) noted:

In Chapple v Wilcox (2014) 87 NSWLR 646 at 648–649 [4]–[6]; [2014] NSWCA 392 at [4]–[6], Basten JA wrote:

Most recently, in Lodin v Lodin (2017) 16 ASTLR 576 at 598–599 [106]–[108], 600 [112]–[113]; [2017] NSWCA 327, Sackville AJA (Basten and White JJA agreeing), wrote at [106]–[108], [112]–[113]:

Although Sackville AJA went on to deal with the claim of an applicant who was a former spouse of the deceased, the following propositions that he stated, at [126]–[129], apply generally:

Finally, I should note that in Page v Page (2017) 16 ASTLR 331 at 340 [38]; [2017] NSWCA 141, Leeming JA noted, at [38], that:

Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant’s proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of the applicant.

In Grey v Harrison [1997] 2 VR 359 at 366–367, Callaway JA (Tadgell and Charles JJA agreeing) observed:

The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: Singer v Berghouse (1994) 181 CLR 201 at 210–211 (Mason CJ, Deane and McHugh JJ); [1994] HCA 40; White v Barron (1980) 144 CLR 431 at 434–435 (Barwick CJ, albeit in dissent in the result), 443 (Mason J); [1980] HCA 14.

Basten JA, in Foley v Ellis [2008] NSWCA 288 at [3], commented that the state of satisfaction “depends upon a multi-faceted evaluative judgment”. In Kay v Archbold [2008] NSWSC 254 at [126], White J (as his Honour then was) said that the assessment of what provision is proper involved “an intuitive assessment”. Stevenson J has described it as “‘an evaluative determination of a discretionary nature, not susceptible of complete exposition’ and one which is ‘inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific’”: Szypica v O’Beirne [2013] NSWSC 297 at [40], citing Manuel v Lane [2013] NSWCA 61 at [9] (Emmett JA, Meagher and Ward JJA agreeing).

Under s 59(1)(c) of the Act, the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application.

I shall deal first with the Plaintiff’s reliance upon s 57(1)(b).

In many cases, it is relatively easy to conclude that two adult persons were in a de facto relationship because the facts make it obvious that there has been the requisite merging of lives, such as where they are living in the same accommodation, are sharing sexual conduct, or where they proclaim that they are a de facto couple.

In other cases, such as this one, it is more difficult to determine whether the relationship should be classified as a de facto relationship if the persons alleged to be in such a relationship, live in an unconventional manner, or when the relationship finds expression in a different type of domestic arrangement. The cases reveal the plethora of the different types of relationships and the different levels of domestic and emotional arrangements between adults. However, even in what might be regarded as a non-traditional relationship, the court is required to evaluate the evidence to determine whether the legal threshold is met and that is determined by considering the facts in the light of the Act. In this regard, a common sense objective judgement should be applied evaluating all of the circumstances.

It is even more difficult for the court to determine the nature of the relationship, where one of the parties to the alleged relationship is dead, and much depends upon acceptance of substantially uncorroborated evidence of the other.

The concept of a de facto relationship is complex and diverse. Importantly, such a relationship can, and should, be distinguished from the relationship of two people, who live apart, but who have a sexual relationship, and who sleep over at one another’s house; and also from the relationship of two people, who share a house, but who do not have a romantic commitment to each other and who have other sexual partners. The fact that one provides the other, on occasions, with financial, or other, assistance, such as accommodation, to alleviate hardship does not mean that they are in a de facto relationship. In this way, a de facto relationship is different from friendship, or courtship, which has not matured into a mutual commitment to a shared life. It is also different from simple companionship.

Drawing all of the facts together, I am of the view that the relationship between the Plaintiff and the deceased, whilst romantic, and perhaps, even loving, could not be described as a de facto relationship at the time of the deceased’s death. Many of the criteria identified in s 21C(3) of the Interpretation Act were not in existence at that time, and, indeed, had not been a feature of the parties’ relationship for a period of time before death. In this regard, I accept the Defendant’s evidence.

Having made a detailed assessment of the sufficiency, and quality, of the evidence, I am not persuaded that the Plaintiff and the deceased had a relationship as a couple living together, at the time of the deceased’s death (as asserted by her). Furthermore, some aspects of the evidence are less than wholly satisfactory. The Plaintiff’s failure to produce any documents going to her having informed Centrelink as she asserted that she had (Tcpt, 17 February 2020, p 62(33) – p 62(38)) is telling when coupled with the fact that she did not produce any pension statements for the period of the alleged de facto relationship, to show that she had been receiving a pension based on a “couple” rate rather than at the “single” rate. This is a matter that was specifically raised by the Court with counsel for the Plaintiff on the first day of the hearing: Tcpt, 17 February 2020, p 63(45) – p 64(04).

By way of additional example, her failure to produce any other documents, such as cards or letters, or evidence of telephone, or any other, messages, between them, and the failure to produce any documents showing the purchase of any joint property for one home or the other, lays bare the absence of what might be thought to be some of the usual accompaniments of a de facto relationship. I have earlier referred to the evidence concerning the deceased’s bank account.

I have not forgotten the evidence of Ms Gallen. The fact that the Plaintiff visited the deceased whilst he was a patient in hospital, even if it occurred regularly, does not elevate the Plaintiff’s relationship with the deceased to that of a de facto relationship.

At the end of the case, there is little more than the Plaintiff’s own evidence on the existence of a de facto relationship. However, the cumulative effect of all of the evidence does not establish, to my satisfaction, that such a relationship existed at the time of the deceased’s death.

Whilst there can be no doubt that the Plaintiff and the deceased were not married to one another, or related by family, I am unable to find that the Plaintiff was living with the deceased, or that they were “living together as a couple” at the time of his death. Accordingly, I am unable to find that she is an eligible person under s 57(1)(b) of the Act.

The rejection of the Plaintiff’s claim as the deceased’s de facto partner leads me to next consider the question whether the Plaintiff was a member of the household of which the deceased was a member, and whether she was wholly or partly dependent upon him. If she establishes eligibility on this basis, and then factors warranting the making of her application, that will entitle her to make the claim for a family provision order (although the findings will not, of themselves, guarantee that the claim will succeed).

Again, I am not satisfied that the Plaintiff and the deceased were members of the same household, even though she visited the deceased at his home at various times, and may have stayed there, with him on occasions.

It is even clearer that she has not established dependency in whole, or in part, upon the deceased at any time. The submission put by counsel that she was “partly dependent on him for accommodation”: Tcpt, 18 February 2020, p 98(04–05), is not supported by evidence that she had her own accommodation provided to her by the Department of Communities and Justice where she lived (as disclosed in the Hospital records).

Nor is there any evidence of “emotional dependency”. Establishing that they were in a close, or in a romantic, or sexual, relationship, does not go far enough, on its own, to demonstrate that type of dependency.

Accordingly, the Plaintiff has not established that she is an eligible person within the meaning of that term in the Act. This means that it is unnecessary to address the other aspects of the case. It follows that her claim must be dismissed.

The Court orders that the Plaintiff’s Summons be dismissed with costs.