McBride v McBride

On 9 November 2022, the plaintiff filed a summons seeking an order under s 59 of the Succession Act 2006 (NSW) that further provision be made for him from the estate (or notional estate) of Mrs Patricia Mary McBride (the deceased).

The deceased died on 15 November 2021. Her final will is dated 5 February 2014. There are codicils dated 17 June 2014 and 22 October 2018. There is also a statutory declaration made by the deceased on 8 November 2018.

The defendant is the executor under the will. Probate was granted to the defendant on 15 March 2022. The plaintiff and the defendant are brother and sister. There are two other siblings, namely Ms Catherine McBride and Mr John McBride.

The bulk of the deceased’s estate was left to the defendant. It is mainly constituted by an apartment in Neutral Bay where the defendant now lives and carries on her practice as a barrister. The defendant is representing herself in the proceedings.

The plaintiff’s benefit from the deceased’s estate was made up of some personal items and about $10,000. The estate was distributed before the plaintiff’s summons was filed.

The plaintiff’s summons has been subject to case management and, in general terms, is making its way towards a final hearing.

On 5 October 2023, the defendant filed a notice of motion seeking a number of orders premised upon a conclusion that the plaintiff had made an offer to settle the litigation and the offer had been accepted by the defendant. If this is correct, the proceedings should necessarily come to an end. The amount of the settlement is said to be $10,000.

The defendant relied upon the following affidavits:

As already noted, Ms Catherine McBride is a sister of the plaintiff and the defendant. Ms Daniel is the defendant’s daughter. Mr Yeates is an employee of Macquarie Bank. He seems to give financial advice to the defendant, and he spoke to her after he saw the video posted by the plaintiff. Mr Webber is a private investigator who was retained by the defendant to prepare a report “in respect of posts to social media from Mr David McBride.” His affidavits exhibit numerous posts from and about Mr McBride.

The plaintiff relied on the affidavit of his solicitor, Ms Leah Sewell, sworn on 16 October 2023. This affidavit, in its entirety, was the subject of objection. I agreed that its contents were not relevant, but did allow, by consent, the tender of the attachments which collectively became Exhibit 1.

The offer said to have been made by the plaintiff was contained in a video created by the plaintiff on 17 August 2023, and then posted on various social media sites. The video is Exhibit C. There are two slightly different transcripts, but nothing turns on the discrepancies. The version I have set out below is Annexure C to the first of Mr Webber’s affidavits of 27 August 2023.

By way of brief background, as at 17 August 2023, the plaintiff, a former military lawyer, was awaiting trial in the Supreme Court of the Australian Capital Territory, facing charges of leaking secret documents to the press. He was very much in the public eye and anxious to amass funds for his defence. He was appealing to the public for funds because, as he says on a “GoFundMe” post he was “facing 50 years in prison for blowing the whistle on the Australian Defence Force’s unethical, harmful and highly politicised leadership which fostered a culture of impunity in Afghanistan.” (Exhibit A)

The plaintiff has since pleaded guilty to the charges and is awaiting sentencing.

The defendant, in her concise statement of issues poses the first, and fundamental, question to be answered by the court in this way:

The balance of the questions are not required to be answered unless the first question is answered, as suggested by the defendant: Yes.

I have watched the video made by the plaintiff. I have also read the transcript of the video. I think it necessary to set out what is said by the plaintiff in the video:

I asked the defendant during the hearing to identify the words which she maintains constituted the offer of settlement. She said that there were no specific words but rather the offer could be discerned from the whole of the video.

Another point clarified by the defendant was that the offer was not limited to $10,000 but rather to any figure between $1,000 and $10,000. This reflects the range referred to by the plaintiff in the video where he says “… could be as little as $10,000 dollars could be $1000 dollars …”

I also asked the defendant about the absence of any mention of costs in the asserted offer made in the video. Bearing in mind that the proceedings were in train so that costs had already been incurred, the sum of $10,000, being effectively inclusive of costs, might leave a very small, if any, net result for the plaintiff. I note that in the video the plaintiff says: “Now obviously I need money for my case ...,” presumably referring to his criminal proceedings. This point is made even more stark if the offer, as asserted by the defendant, was also for a figure of $1,000.

The defendant said that costs were not necessarily, or even usually, awarded in succession cases. This might be correct but it would not excuse each litigant from paying their own lawyers for their services.

Another point made stridently by the defendant was that there was no evidence put on by the plaintiff personally. He does not say that he was not making an offer or what he intended by his words. I was asked to draw an inference, of the type referred to in Jones v Dunkel (1959) 101 CLR 298 and described by Sackar J in John Hillam v JPSF Pty Ltd [2017] NSWSC 1510 in this way, at [50]:

The difficulty with the submission is that the point at issue, namely whether an offer was made, must be based upon an objective assessment, so that the personal opinions of the parties are not decisive. I decline to draw the requested inference.

The defendant in her written submissions, and in the hearing, outlined the law concerning offer and acceptance as referable to the formation of a contract. I do not think any of the defendant’s submissions about the law are incorrect. I accept that an offer can be inferred from the conduct of the parties. The defendant referred me to Hendricks v McGeoch (2008) Aust Torts Reports 81-942; [2008] NSWCA 53 at [10]:

In ICTA Investments Pty Ltd t/as Jolly Roger & Anor v GE Commercial Corporation (Australia) Pty Ltd & Anor (2006) Aust Contract Reports 90-244; [2006] NSWCA 290, Hodgson JA said, at [53]:

ICTA Investments centred on whether or not certain conduct had constituted acceptance of an offer. The principle however relates equally to the existence of an offer.

The difficulty I have in this case is to conclude that the words identified by the defendant can be seen as an offer. On any objective assessment of what is said by the plaintiff, I cannot see his words as extending beyond a prediction as to what the outcome of his civil case might be. An objective assessment is the required standard (Kriketos v Livschitz (2009) 14 BPR 26717; [2009] NSWCA 96 at [107]).

I accept that in examining whether an offer had been made I can look at the parties’ dealings with each other in order to pose the test set out in Brambles Holdings Limited v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 at [81]: adapted to this case; what would a reasonable person in the position of the defendant think as to whether or not an offer of settlement had been made.

There are no inter-parties dealings in this case which assist. These are parties who are siblings in a dispute about their mother’s will. They are not commercially related, they do not deal with each other and there are no facts from which any inference can be drawn going beyond the contents of the video.

The plaintiff’s words were spoken to recipients on social media. There is no suggestion that they were addressed to the defendant. In her affidavit of 3 October 2023, the defendant stated:

I do accept that it is possible to use social media to make an offer. The defendant referred me to an article from Pace University in which instances of such an offer were described. For example, in 2016 Kanye West, a rap artist, said his forthcoming album (Life of Pablo) would only be available on a particular streaming platform (Tidal). When the album was released to other platforms a number of consumers complained that they had purchased subscriptions to Tidal because they thought it would be the only way of accessing the album. A class action lawsuit was ultimately settled.

The distinction here is that the offer made by Kanye West was explicit to the effect that his album would only be available on Tidal. This was a clear offer or inducement to the public to subscribe to Tidal. I also note that no legal decision was ever made because of the settlement.

Another point made by the defendant was that I should take into account the weakness of the plaintiff’s case for further provision from the estate. The regard that would be held for the deceased’s wishes together with the funds having to come from a notional estate and the defendant’s personal circumstances would combine to significantly impact the likelihood of success on the part of the plaintiff. Accordingly, an offer between $10,000 and $1,000 might be seen as a realistic way out of the proceedings.

I think there is some merit in this argument to the extent that it suggests that a reasonable person, in making an offer to settle the litigation, would take into account the prospects of success in the litigation. I do not see this as a factor as playing any significant part in this case. There is nothing in the video to suggest any contemplation by the plaintiff of an assessment of the strength and weaknesses of the case. He is doing no more than posing possible outcomes.

Another matter which I also do not think is relevant is the complaint made by the plaintiff to the NSW Legal Services Commissioner. A number of documents about this complaint, which was ultimately dismissed, were tendered (Exhibits B and 2) but they do not assist in the objective assessment of whether or not an offer was conveyed by the video.

The difficulty for the defendant is that I cannot see any interpretation of the words which might lead any person viewing the video, let alone the defendant, to reasonably (or even subjectively) conclude that the plaintiff was making an offer to compromise his case. I accept that the plaintiff may well have been anxious to collect funds to assist in the defence of the criminal charges he was facing in the Australian Capital Territory. However, to conclude that he was stating that he was prepared to compromise the civil proceedings for $10,000, or $1000, or any figure in between, is I think well beyond any objective interpretation of the video.

At [10] of her affidavit, the defendant states that “the public comments made by the plaintiff was [sic] a genuine offer on the part of the plaintiff to settle these proceedings.” With respect, I cannot ‘join the dots’ between the plaintiff’s words in the video and a construction of a “genuine offer.” I also cannot draw any inference from the surrounding facts which might give credence to the presence of an offer of settlement. I further note that the conversation recorded by the defendant in her affidavit between her and her sister Catherine suggests that the defendant did not interpret the video as containing an offer of settlement, rather the idea came from Catherine.

In oral submissions the defendant added that she had personally not initially viewed the video as an offer but was ultimately persuaded by the exhortations of other persons, some of them unnamed because they did not wish to become involved in the proceedings. The fact that the defendant’s sister, daughter, and psychologist had a view about what was said is not the test of objectivity. The psychologist I have referred to is a Mr Brian Tierney who said to the defendant:

The main factors which have motivated my decision are the following:

Returning then to the starting question posed by the defendant, as set out above, my answer is: No.

The consequence of my answer is that the defendant’s notice of motion must fail.

I make the following orders: