Fitzgerald as Administrator of the Estate of the Late Lesley Provan v Cooper; Fitzgerald as Administrator of the Estate of the Late Lesley Provan v The Valley Centre for Environmental Education & Research Incorporated

Amba Marguerite Fitzgerald, as Administrator of the Estate of the Late Lesley Provan, is the plaintiff in proceeding 2018/80831 and the plaintiff and cross-defendant in proceeding 2018/88427. It is convenient to refer to Ms Fitzgerald as “the plaintiff”.

On 13 March 2018, the plaintiff commenced proceeding 2018/88427 against Tracey Anne Cooper (“Ms Cooper” and “the Cooper proceeding”).

On 20 March 2018, the plaintiff commenced proceeding 2018/80831 against The Valley Centre for Environmental Education and Research Incorporated (“Valley Centre” and “the Valley Centre proceeding”).

The two proceedings are at the same stage of preparation for hearing.

By notice of motion filed on 3 February 2020 in the Cooper proceeding, as amended orally during the hearing of the motion on 16 April 2020, the plaintiff seeks:

Ms Cooper and the Valley Centre are the respondents to the plaintiff’s motion and oppose the application for the joint hearing order. Ms Cooper also opposes the alternative application for the sequential hearing order and submits that the two proceedings should be heard separately in the usual way. The Valley Centre neither opposes nor consents to the sequential hearing order.

Rule 28.5 of the UCPR provides:

The principles applicable to determining an application for consolidation or joint hearing under UCPR r 28.5 were summarised by Austin J in Ghose v CX Reinsurance Company Ltd [2010] NSWSC 110 at [26]–[32]. At [26]–[27], his Honour endorsed the following statement by Wolff J (as his Honour then was) in Cousins v Cousins (1948) 51 WALR 57 at 60 as applicable to applications for joint hearings (as well as applications for consolidation):

Austin J continued (at [27]):

At [29]–[32], Austin J identified factors that a court is likely to take into account in the exercise of its discretion on an application for consolidation or joint hearing, including the following nine factors articulated by Besanko J in Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 at [11]:

Adopting the pragmatic approach referred to by Austin J, it is appropriate to examine the nature of the claims in the Cooper proceeding and the Valley Centre proceeding, before considering the factors relied on by the plaintiff as supporting the joint hearing order or, alternatively, the sequential hearing order.

The plaintiff relied on an affidavit of Samuel Heath Roberts sworn on 3 February 2020 and a further affidavit of Mr Roberts sworn on 13 February 2020. Mr Roberts is the solicitor on the record for the plaintiff in the Cooper proceeding and the Valley Centre proceeding.

In considering the nature of the claims and the issues in dispute between the parties in each proceeding, I have had regard to description of the proceedings in Mr Roberts’ affidavit sworn on 3 February 2020, the parties’ written and oral submissions and the current pleadings on the court file in each proceeding.

The claims in the Cooper proceedings principally concern:

In addition, the Cooper proceedings include a cross-claim by Ms Cooper under Chapter 3 of the Succession Act 2006 (NSW) for provision out of the deceased’s estate for her proper maintenance, education and advancement in life.

The claims in the Valley Centre proceedings principally concern:

The plaintiff claims a declaration of equitable charge over the Lower Portland property to secure repayment of the sum of $499,970 said to be owing by Valley Centre to the deceased’s estate, and an order appointing trustees to sell the Lower Portland property and pay that amount to the plaintiff from the proceeds of sale.

Mr Roberts’ affidavits and the plaintiff’s written and oral submissions identified the following matters that the plaintiff submitted favour the making of the joint hearing order:

The plaintiff submitted, that the proceedings are similar in nature because:

The defendants submitted that the proceedings do not involve one series of transactions and that there is no common issue in the proceedings about the source of funds used to acquire properties.

I do not consider that the proceedings are similar in nature in a sense that would warrant a joint hearing.

As the analysis of the claims above demonstrates, the two proceedings concern different transactions relating to different properties. The principal transactions in issue in the Valley Centre proceedings are loans allegedly made by the deceased to Valley Centre in 1997 and early 1998, whereas the transactions in issue in the Cooper proceedings involve the acquisition of properties in 2005, 2008 and 2010.

Even if the source of funds used for acquisition of properties is an issue that arises on the evidence in both proceedings (and the defendants submit that it does not), a factual issue about the source of funds used for the different transactions entered into by the deceased with Valley Centre and with Ms Cooper would not, without more, warrant the proceedings being characterised as similar in nature.

At the hearing of the notice of motion on 16 April 2020, counsel for the plaintiff submitted that “what these proceedings have become with the evidence is effectively … a quasi tracing of moneys from the deceased … through a series of investments” (T 3.20). In answer to a question from me, counsel for the plaintiff submitted that:

However, the defendants disputed this high level summary of the issues and evidence, and the plaintiff’s submission was not supported by any detailed analysis of the evidence.

Schedule A to the plaintiff’s written submissions sets out a chronological summary of affidavits served in both proceedings, but the plaintiff’s submissions did not seek to demonstrate how this summary reveals a “quasi tracing” exercise that would be relevant to the pleaded issues in one or both of the proceedings. Counsel for the plaintiff referred me to entries in Schedule A for one period only, namely September 2009. Those entries did not reveal evidence of a “quasi tracing” nature.

The plaintiff relies on paragraphs 32 to 37 of Mr Roberts’ affidavit sworn on 3 February 2020 as identifying the issues of fact or law that are said to be common to both proceedings. Those paragraphs contain a series of assertions that certain matters are common to both proceedings.

In paragraph 32(a) of that affidavit, Mr Roberts says that the capacity of the plaintiff to bring the proceedings on behalf of the deceased’s estate is an issue of fact and law common to both proceedings.

This issue is not pleaded, and the plaintiff’s written and oral submissions did not shed any light on how this issue arises in the proceedings.

Paragraph 32(b) of Mr Roberts’ affidavit states that there is a common issue about whether the deceased had funds available to her to pay the monies alleged to have been paid to Ms Cooper and Valley Centre, and the source of those funds.

For the reasons already addressed above, the plaintiff’s evidence and submissions have not established that this is a common issue.

Paragraph 32(c) of Mr Roberts’ affidavit states that there is a common issue about whether Ms Cooper made two representations to the deceased on or about 4 December 2009, one relating to beneficial ownership of the Glossodia House and the other relating to loans made by the deceased to Valley Centre.

Even assuming that both of those representations were made in the same communication or document (although the plaintiff’s counsel accepted in oral submissions that Schedule A to the written submissions did not establish this), the first alleged representation is relevant only to the Cooper proceeding and the second representation is relevant only to the Valley Centre proceeding.

At best, there may be some common evidence adduced in the two proceedings about the 4 December 2009 communication, but that evidence will be relevant to a different issue in each proceeding. In oral submissions, the plaintiff’s counsel identified that common evidence as a single document: an eleven page loan application document signed by the deceased and Ms Cooper dated 4 December 2009 that is Annexure B to Mr Roberts’ affidavit sworn on 3 February 2020.

In oral submissions, the plaintiff’s counsel explained that paragraphs 32(d) to (f) of Mr Roberts’ affidavit refer to an issue about whether Ms Cooper relied on the deceased in respect of documents relevant to the personal financial affairs of the deceased and Ms Cooper and in respect of documents relevant to the financial affairs of Valley Centre, or whether the deceased was in fact induced by Ms Cooper to make certain assumptions about the beneficial ownership of the properties she owned jointly with Ms Cooper and/or her entitlement to be repaid the moneys allegedly loaned to Valley Centre. Similar points are raised in paragraphs 34 and 35 of Mr Roberts’ affidavit.

It is only by characterising the issues at the highest level of generality that representations, reliance, assumptions and unconscionability can be said to be common issues between the two proceedings. The subject matter of the alleged representations, reliance, assumptions, and the matters that are said to render departure from representations unconscionable, are different in each proceeding.

Paragraph 33(g) of Mr Roberts’ affidavit states that there is a common issue in the proceedings about whether the amount claimed to be owing by Valley Centre to the plaintiff is an asset of the deceased’s estate, and that this is relevant to Ms Cooper’s family provision claim.

This does not mean that the substance of the plaintiff’s claims in the Valley Centre proceedings is a common issue across the two proceedings. Rather, the outcome of the plaintiff’s claims in the Valley Centre proceeding would affect the value of the deceased’s estate, and this is potentially relevant to the determination of Ms Cooper’s family provision claim in the Cooper proceeding.

This illustrates the desirability of the outcome of the plaintiff’s claims in the Valley Centre proceeding being known before the family provision claim is determined in the Cooper proceeding. This could be achieved by the Valley Centre proceeding being heard and determined before the Cooper proceeding, rather than by a joint hearing.

Paragraph 36 of Mr Roberts’ affidavit refers to the fact that the plaintiff seeks declarations in respect of equitable interests in real property in both proceedings.

However, the nature of the relief sought is not a common issue in any meaningful sense as it is sought in relation to different properties and is claimed on the basis of different conduct and dealings that allegedly occurred at different times in each proceeding.

Paragraph 37(a) of Mr Roberts’ affidavit states that the denial of the agreement or intention and understanding allegedly formed in 2004 relating to the basis on which the deceased and Ms Cooper would purchase investment properties in their joint names, and the denial of any acknowledgment of a loan account from the deceased to Valley Centre, are common questions in the two proceedings.

However, as demonstrated by the analysis of the claims in the proceedings above, the first question arises only in the Cooper proceeding and the second question arises only in the Valley Centre proceeding.

Paragraphs 37(b) and (c) of Mr Roberts’ affidavit state that limitation defences, and equitable defences of laches and acquiescence, are common questions in the proceedings.

These defences are pleaded in both proceedings, but they relate to the different causes of action and claims for relief pleaded in each proceeding, which in turn arise from different facts and in relation to different properties.

I accept Mr Roberts’ evidence and the plaintiff’s submissions to the effect that the deceased and Ms Cooper were both closely involved in the affairs of Valley Centre in addition to acquiring together the properties that are the subject of the Cooper proceeding and residing together in the Glossodia House from late 2004 or early 2005 until the deceased’s death in June 2013. However, the fact that the different facts pleaded in support of the different claims in the two proceedings arise from the same very broadly cast “factual matrix” does not, by itself, make a joint hearing of the two proceedings desirable or appropriate.

Whilst Ms Cooper is not a party to the Valley Centre proceeding, Valley Centre has served an affidavit of Ms Cooper and it is expected that she will be a witness in both the Valley Centre proceeding and the Cooper proceeding. The plaintiff and seven other witnesses will also give evidence in both proceedings.

However, subject to the two exceptions referred to immediately below, the plaintiff did not identify matters about which these witnesses are expected to give the same evidence in both proceedings. On the contrary, Schedule A to the plaintiff’s written submissions indicates that the substance of the evidence given by the witnesses is different. Schedule A was presented as a chronological summary of the affidavit evidence of the witnesses in both proceedings, with each entry in the schedule identifying the paragraph of the witness’s affidavit that is summarised and the proceeding in which that affidavit has been served. Counsel for the plaintiff did not address Schedule A in any detail in written or oral submissions, and I have been unable to identify any entry in which the substance of the evidence summarised is sourced from affidavits filed in both proceedings. Each entry refers only to an affidavit filed in one proceeding or the other.

The first exception is the 4 December 2009 document referred to above (see [29]), about which it may be assumed, for present purposes, that Ms Cooper is likely to give evidence in both proceedings. However, for the reasons identified above, any evidence that she would give about that document would go to a different factual allegation in each proceeding.

The second exception is that one of the plaintiff’s affidavits in the Cooper proceeding apparently refers to her affidavit served in the Valley Centre proceedings, and that one of the exhibits to each of the two affidavits is identical. This is mentioned in correspondence between solicitors annexed to Mr Roberts’ affidavit sworn on 3 February 2020, but the substance and extent of the identical evidence is not identified and this matter was not referred to in the plaintiff’s written or oral submissions. If this material contained substantial material evidence common to both proceedings, I expect that the plaintiff would have identified this in submissions.

As I have referred to above, there are separate issues about alleged representations, reliance, assumptions and unconscionability that are in dispute in each proceeding.

The plaintiff submitted that evidence of Ms Cooper in the Valley Centre proceeding about whether she signed accounts of the Valley Centre without reading them “may be entirely relevant to” evidence of Ms Cooper in the Cooper proceeding about whether she relied on the deceased to prepare loan applications that Ms Cooper signed. It was submitted that the Court’s acceptance or rejection of Ms Cooper’s evidence about the first issue may affect the Court’s findings about the second issue, or vice versa.

It does not seem to me that Ms Cooper’s conduct in relation to signing documents for an entity of which she was an officer would necessarily rationally affect the assessment of her evidence about her conduct in signing documents relating to her personal financial affairs. However, I accept that this might be so if, for example, Ms Cooper gave evidence about her general practices in relation to signing financial documents across a period of time covering the period relevant to both proceedings.

The plaintiff submitted that it would be unsatisfactory for Ms Cooper’s evidence about signing documents in one proceeding not to be before the Court in the other proceeding.

However, I do not think this rises above inconvenience to the plaintiff. Whilst it might be convenient for the plaintiff to have all of that evidence adduced in one joint hearing for the purpose of mounting any attacks on the credibility of Ms Cooper’s evidence, it will be open to the plaintiff to adduce all evidence relevant to the document signing issue in each proceeding and, to the extent that Ms Cooper’s evidence under cross-examination in one proceeding might be inconsistent with her evidence in the other proceeding, to put any such prior inconsistent statements to Ms Cooper.

The plaintiff also submitted that this gave rise to a prospect of inconsistent findings in the two proceedings.

However, a finding about Ms Cooper’s conduct concerning the signing of Valley Centre’s accounts would not be inconsistent with a finding about her conduct when signing personal financial documents. The two findings relate to different factual issues.

If and to the extent that there is an attack on the general credit of Ms Cooper in each proceeding (as the plaintiff’s submissions foreshadowed), it is possible that the Court may form a different assessment of her credit in each proceeding. However, each such assessment would be based on the whole of the evidence adduced in that proceeding. A different assessment in each proceeding would therefore not result in inconsistent findings in a sense that would warrant a joint hearing notwithstanding the different nature of the proceedings, the lack of common issues in a meaningful sense and the minimal overlap of the evidence in the two proceedings, as referred to above.

In paragraph 52 of his affidavit sworn on 3 February 2020, Mr Roberts estimated, based on his experience, that a joint hearing would take approximately between two and a half weeks and three and a half weeks, and that it would take approximately between two weeks and two and a half weeks for each proceeding to be heard separately.

Mr Roberts’ estimate was not supported by any breakdown of the estimated time required for key steps during the hearing (or hearings). With respect, I afford little weight to these very high level estimates, having regard to the different issues in the two proceedings and the plaintiff’s failure to identify any material overlap in the evidence to be adduced in each proceeding.

In any event, Mr Roberts’ estimates would mean that a joint hearing would cause each defendant to incur the costs of additional hearing time in the order of between approximately one week and one and a half weeks. That is a significant cost to impose on the defendants. This is a factor that, together with the other factors addressed above, favours separate hearings rather than a joint hearing.

The plaintiff submitted that a joint hearing would be convenient to her due to the decrease in the total length (and therefore cost) of the hearing. However, what is convenient to the plaintiff is equally inconvenient and costly to each of the defendants.

The plaintiff also submitted that a joint hearing would be convenient to four elderly witnesses who will give evidence in each proceeding and will therefore each be required to attend and give evidence twice unless an order is made for joint hearing. Two of the witnesses are aged in their sixties. The age of the other two witnesses was not specified in the plaintiff’s evidence or submissions.

It does not follow from the fact that a person is aged in their sixties that she or he will have difficulty in attending court on two separate occasions. If any such difficulty arises from the need for these witnesses to travel some distance in order to attend court (and there was no evidence about this), then this can be addressed by appropriate arrangements being made for the witnesses to give evidence remotely via audio visual link.

Taking into account all of the factors relied on by the plaintiff and my own review of the pleadings in each proceeding and applying the pragmatic approach referred to by Austin J in Ghose v CX Reinsurance Company Ltd at [27], I have reached the conclusion that no order for a joint hearing should be made. For the reasons above, I do not consider that the two proceedings can be described as similar in nature or that they involve common issues of fact and law. There is some similarity between the nature of the legal issues and the nature of the relief claimed, but these issues and claims arise from different facts. Whilst the two proceedings involve common witnesses, the plaintiff has not demonstrated that they involve common evidence (save for the two limited exceptions to which I have referred above) or that the likely course of the evidence in each proceeding is such that they should be heard jointly. The fact that a joint hearing would be convenient to the plaintiff does not warrant imposing material additional hearing time and cost on each defendant. In any event, the estimates put forward by the plaintiff were not sufficiently thorough to persuade me that a joint hearing would in fact be likely to achieve a saving in overall hearing time.

The proposed sequential hearing order would require the Valley Centre proceeding be heard first and then immediately followed by the Cooper proceeding, and that both matters be heard by the same judge.

For all of the reasons above, I am not persuaded that the nature, issues or evidence in the two proceedings is such that they should be heard by the same judge.

In addition, the proposed sequential hearing order has the potential to prejudice Ms Cooper and raise questions about actual or apprehended bias on the part of the trial judge if (as the plaintiff foreshadowed) there is to be an attack on the general credit of Ms Cooper in each proceeding.

In the Valley Centre proceeding, Ms Cooper will be a witness, but not a party. She will therefore not have legal representation and will not have an opportunity to make submissions about any credit findings that should be made in that proceeding. Under the sequential hearing proposal, the trial judge would be considering and forming (and, indeed, may have formed) his or her assessment about Ms Cooper’s general credit before hearing Ms Cooper’s evidence in the Cooper proceeding. This is problematic, irrespective of whether the trial judge has already delivered judgment in the Valley Centre proceeding before hearing the Cooper proceeding.

As already noted above, the outcome of the plaintiff’s claims in the Valley Centre proceeding may affect the value of the deceased’s estate, and this is potentially relevant to the determination of Ms Cooper’s family provision claim in the Cooper proceeding. This does make it desirable that the Valley Centre proceeding be heard and determined before the family provision claim is determined in the Cooper proceeding. However, this can be achieved by means other than the proposed sequential hearing order. For example, it is open to the parties to list the matters for separate hearings in the usual way, but seek an earlier hearing date for the Valley Centre proceeding.

For the reasons above, I make the following orders: