Grigor v Stock; Stock v Stock

HIS HONOUR: Clear communication is essential to human existence and flourishing. Motives for the decision to speak or not are likewise vital. St Augustine recognised this in stating “If you are silent, be silent out of love. If you speak, speak out of love.” [1]

The sensible resolution of two family provision proceedings stumbled at the final hurdle but has commendably been salvaged, leading to the making of final orders in each matter this afternoon.

The stumble, in circumstances recited below, occurred seemingly by misapprehension of one or more practitioners as to what is permissible communication with the Court and a consequent failure for a period of over 3 months to notify the Court that an aspect of orders had become contentious. The result to some degree stymied the expeditious finalisation and distribution of the estate that is the subject of the proceedings.

The administration of justice is a joint endeavour in the sense that each of the parties, the legal practitioners, and the Court perform different but necessary roles.

Important aspects of the statutory changes in New South Wales commencing on 1 March 2000 embedded an overriding purpose into rules of Court to facilitate the just, quick and cheap resolution of the real issues in proceedings. [2] That change and the civil procedure reforms in 2005 [3] included a resetting of the role of parties, legal practitioners and the Court in the conduct of civil litigation. The statutory reforms formalised, and indeed enhanced, what many judges were already addressing in the regulation of the Court’s processes to ensure the just, quick and cheap disposition of the real issues in the proceedings. [4]

Specifically, the Court is not a silent or idle participant in the effective case management of civil litigation. The resetting of the roles ensured that responsibility for the conduct of proceedings was actively overseen by the Court and not merely or predominantly left to forensic decisions of the parties. [5]

Effective case management in light of the overriding purpose requires active and transparent communication as between legal practitioners for the parties and as between the Court and judges on the one hand and the legal practitioners on the other. The concluding events of this estate litigation provide a salient reminder of the importance of the character of such purposeful communication.

The late William Edward Stock (deceased) died on 25 January 2023. His wife Betty predeceased him on 17 July 2022. They had five children, one of whom, Tamara, tragically died in a house fire, aged 10. The deceased was survived by his four remaining children, being Stephen and Therese, the two plaintiffs in these related proceedings, Nathan, the defendant in both proceedings, and William.

On 24 January 2024, a day before the expiry of the limitation period, Therese filed her summons. Stephen commenced his proceedings by summons filed on 22 March 2024, two months out of time.

On 10 October 2024, both proceedings were mediated before a Senior Deputy Registrar. They did not resolve although negotiations seemingly continued. On 24 October 2024, Registrar Gerritsen noted that the matters had settled in principle and made the usual direction requiring the lodging of signed consent orders and completed settlement checklist by 5 November 2024.

On 19 November 2024, both proceedings were referred to myself as the Family Provision List Judge.

On 22 November 2024, by correspondence from my Associate, I raised a number of requisitions with the respective legal representatives being Mr Gamble on the part of Stephen, Mr Kirschler on the part of Therese, and Ms Braly on the part of the defendant. One of the issues raised in the requisitions related to the service of a Notice of Claim on William.

On 10 December 2024, Ms Braly responded to the requisitions and provided an affidavit indicating that Therese’s family provision summons, her affidavit in chief and the costs’ affidavit had been served on solicitors who had provided some confirmation that they relevantly acted on behalf of William.

The requirement for service on an eligible person in family provision proceedings is for service of a prescribed form of Notice of Claim document rather than service of the plaintiff’s summons, the affidavit in chief and costs’ affidavit. [6] Nonetheless, in light of other material in Ms Braly’s affidavit, I was prepared to make a notation to the effect that, to the extent that there is doubt about whether a Notice of Claim has been formally served on William, that service of notice of the plaintiff’s application on William John Stock is unnecessary in the circumstances of the case pursuant to s 61(2)(b) of the Succession Act 2006 (NSW) (Succession Act).

On 11 December 2024, my Associate at my request sent an email to the respective solicitors, being a common form of penultimate email in family provision proceedings in which I set out proposed orders and notations I was prepared to make dealing entirely with both matters (precursor email).

The precursor email prefaced the proposed orders with the following:

Mr Gamble promptly responded on the same day (11 December 2024) indicating that the proposed orders were agreed. Mr Kershler responded on 14 January 2025 indicating that the orders are appropriate.

Neither the correspondence from Mr Gamble nor Mr Kirschler gave the Court any indication that there was any disputed issue in relation to the settlement of the proceedings.

On 5 March 2025, the orders not having been finalised and in the absence of any further correspondence from the parties, my Associate emailed the parties noting that no response had been received from the defendant and requesting the legal practitioners for the defendant to indicate whether they consented to the orders being made or if they required amendment.

On Friday, 14 March 2025, Ms Braly sent an email to my Associate apologising for the delay in reply (noting cyclone Alfred as a factor amongst others) and indicated that the parties are “currently in negotiations in relation to a deed of settlement and seek further time to finalise the agreement”.

On Monday, 17 March 2025, my Associate at my request corresponded with the practitioners indicating that it was not clear to me why there was any necessity for the matter to be further delayed in relation to any deed of settlement. The email recited the correspondence to finalise the proposed orders in the matter (noted above), indicated that there had been no indication on behalf of the defendant that the orders were other than appropriate, and observed that over 4 months had elapsed since the initial requisition correspondence regarding the matters and over 3 months since the precursor email setting out the orders that I was prepared to make.

The email then relevantly stated:

Approximately two hours later, Ms Braly sent my Associate an email in the following terms (omitting formal parts):

That email was the first indication to the Court since 11 December 2023 that the prior correspondence from the plaintiff’s solicitors had purportedly been sent without consent in a context in which there was active controversy between the parties as to the appropriate orders to be made.

Consequent upon receipt of that email, I arranged for my Associate to list the matter for mention before me yesterday morning and to notify the legal practitioners.

On the listing before me at 9 AM yesterday, practitioners appeared for each of the parties different to those who I have mentioned above.

I was informed by Mr Flick of counsel for the defendant that the parties on Monday (i.e. the day before the listing) had been able to reach agreement on a Deed of Settlement and proposed Short Minutes of Order.

The respective Short Minutes of Order in each claim were in the same terms that my Associate had circulated on 11 December 2024 with the exception that in each matter, a new order had been drafted to replace proposed Orders 11 and 12.

The proposed orders in the precursor email (crafted in light of the answers to the requisitions) were as follows:

The proposed new orders in each matter being:

The Deed of Settlement contained clauses including releases by Therese and Stephen. On one view, those clauses potentially operated as releases of family provision rights in respect of both the deceased’s estate and Betty’s estate. For that reason, I enquired of the parties as to whether it was still the case that the parties contemplated that the releases did not extend to including releases of family provision claims, or, if they now did so contemplate, whether the parties sought to have the releases approved.

Mr Morrison, who appeared on behalf of Stephen, and who has not hitherto been briefed on the matter, indicated (properly) that he would need to obtain instructions.

The matter was adjourned to today to enable the parties to clarify the position, and, if it was contemplated that the extent of releases included family provision releases, to indicate whether orders were sought for approval of those releases and for affidavits to be prepared providing an evidentiary basis on which the Court could act in approving such releases pursuant to s 95(4) of the Succession Act.

Yesterday afternoon and earlier today, the parties provided further material addressing the position regarding release of rights.

I have considered that material and finalised orders, including orders now approving releases of rights.

It is commendable that the parties have been able to finally agree to resolve the matter so quickly upon the Court listing the matter for mention to address the issues raised by Ms Braly’s email.

However, for there to have been prolonged delay in the parties alerting the Court to the fact that there was a contentious issue precluding the final making of orders, is regrettable.

When I enquired yesterday as to why no party had corresponded with the Court or sought to indicate to the Court that there was a contentious issue in respect of the matter, Mr Flick on the part of the defendant ventured that the defendant’s camp had in some way understood that what I have described as the precursor email sent on 11 December 2024 had conveyed the impression that I “was after a consent position or consent communication”.

The intimation is that those in the defendant’s camp were labouring under an impression that they were precluded from informing the Court that there was a contentious issue regarding the proposed orders unless the solicitors for the respective plaintiffs consented to an email being sent to that effect.

Quite how that construction of the precursor email was arrived at or assumed is unclear. To the extent that the failure to communicate was motivated by a concern not to inappropriately challenge a directive from a judge, the motive is perhaps understandable. However, at least in this instance, if that was the case, it was misconceived. Dwelling further on other motives for the lack of communication I suspect will yield diminishing returns. In any event on one view it is inutile as the legal representatives who appeared yesterday readily conceded that there was no doubt that I should have been alerted shortly after 11 December 2024 that there was dispute between the parties regarding the orders.

It is timely to clarify a number of matters to ensure that communication between practitioners themselves and between practitioners and the Court facilitates the overriding purpose.

First, parties to civil proceedings are under a duty to assist the Court to further the overriding purpose of the just, quick and cheap resolution of the real issues in the proceedings, and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court. [7]

That duty endures to the final conclusion of the proceedings and not merely to a point where the parties have settled the proceedings in principle but final orders have not entered. Further, the legal practitioners for the parties must not, by their conduct, cause a party to be put in breach of that duty of assistance. [8]

Secondly, generally it is true that there should be no communication with a judge’s chambers in relation to any matter before the Court without the consent of all other active parties to the proceedings: Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971 at [3] per Kunc J. The reasons for that and the circumstances in which communications are and are not permissible are addressed by his Honour at [19]-[22]. However, as with many generalisations, there is importance in understanding exceptions to the general rule and the purposes which underlie it.

Specifically, legal practitioners are not precluded from alerting a judge by correspondence to the Associate, copied to all other legal practitioners for active parties, that there is dispute between the parties as to orders and to request for the matter to be relisted so that any such contentious matters can be addressed in open court.

The timely and effective disposition of family provision proceedings, the dictates of justice, and the abovementioned duty of parties and expected conduct of practitioners should not merely have led the practitioners in these proceedings to confer with each other in addressing the contentious issue, but in light of the lack of ready resolution, compelled them to alert the Court that a problem had arisen so that the matter could be actively and effectively addressed by the Court.

Thirdly, in family provision proceedings, the evident purpose of the precursor email is to ensure that the parties reflect upon whether the proposed orders have properly encapsulated both their proposed resolution and any necessary jurisdictional or procedural fairness requirement which may bear upon the matter. In the case of any amendment, the request for a single email is to facilitate the matter being dealt with in a cooperative and efficient way consistent with the overriding purpose of the rules, rather than the matter being dealt with by piecemeal correspondence from different legal representatives proposing amendments. Specifically, the email is not a caveat or directive from the Court that the practitioners should refrain from informing the Court that the orders are not agreed or that there is a contentious issue between the parties as to the orders.

Fourthly, it is opportune to recall that the high volume of matters which are filed in or allocated to the Probate and Family Provision List and, in particular, the volume of matters in which practitioners seek consent orders, necessarily has the effect that the List Judges are heavily reliant upon practitioners not merely providing proposed orders in an orderly form but, additionally, specifically reliant upon practitioners being vigilant to alerting judges to any jurisdictional or other unusual or vexing aspects attending the matter, [9] including relevantly the fact that a dispute has not merely emerged but persisted between the parties. Practitioners are expected to use common sense in light of the purposes which underlie the jurisdiction and communicate with one another in ways that facilitate addressing such matters.

Fifthly, sometimes if contentious issues arise between parties, it might well be perfectly sensible for the legal practitioners in the first instance to see whether the matter can be resolved effectively without precipitously arranging for a relisting of the matter. Wisdom and forensic judgement are required in order to assess whether the matter can be expediently resolved or whether the impediments are such that the Court should be alerted to the fact of contention and some explanation given for delay. Practitioners should act with common decency to one another in the process. Reasonable requests to alert the Court to a contentious issue should not be rebuffed but appropriately considered. Ultimately, each matter will turn on its own facts. Practitioners, in exercising their forensic judgement in determining whether to alert the Court to complication and to seek to relist the matter, should be motivated and informed by the overriding purpose of civil litigation and the expeditious resolution of estate law claims.

Mercifully, the proceedings have now been concluded in accordance with orders finalised in consultation with the parties during the course of the day.