ALLAN v THE PUBLIC TRUSTEE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, HANDLEY and POWELL JJA 24 April 1995, 25 August 1995 [1995] NSWCA 13 FAMILY PROVISION — APPEAL — EVENTS AFTER TRIAL — FURTHER EVIDENCE ON APPEAL In October 1993 Master Macready awarded the appellant under the Family Provision Acta legacy of $250,000 from the estate of the late Vera Palley which was worth $730,000 and passed to the Crown as bona vacantia. The appellant did not appeal within time. Her second son later killed her husband and following his conviction for manslaughter committed suicide in gaol. Shortly afterwards she was diagnosed with cancer. In April 1994 she was given an extension of time to appeal. On appeal the Master's order was challenged as inadequate on the evidence before him, and in the alternative as inadequate in the light of later events. The appellant sought leave to adduce further evidence. Held: (1) The Master's award was not inadequate at the time, a legacy of $250,000 being well within his discretion. (2) The Court should not receive the further evidence which, as Moffitt AP said in Warr v Santos (1973) 1 NSWLR 432 at 434 was "sought to be availed of to disturb an otherwise unimpeachable determination after a hearing upon the merits". (3) Where the time for appealing had expired '"'a very strict rule should be applied". Mulholland v Mitchell [1971] AC 666 at 681-682. Doherty v Liverpool Hospital (1991) 22 NSWLR 284 applied. ORDER Appeal dismissed with costs. Gleeson CJ I have had the benefit of reading in draft form the judgment of Handley JA. I agree with the orders proposed by his Honour, and with his reasons for those orders. Handley JA This is an appeal by the plaintiff from an order of Master Macready made on 29 October 1993 awarding her under the Family Provision Act (the Act) a legacy of $250,000 from the Estate of the late Vera Palley (the deceased). The deceased, a so-called White Russian, who was born in Manchuria in 1916 came to this country from Hong Kong during the 50s. She was married but her husband predeceased her in 1973 and they had no children. She died intestate on 23 September 1991 aged seventy five without next of kin. She left an estate valued at the date of trial at approximately $730,000 which, subject to the Act, passed to the Crown as bona vacantia. The appellant is also a White Russian having been born in Manchuria in 1942. In 1955 the deceased sponsored the migration to this country of the appellant, her parents, sisters and grandmother. The appellant lived with the deceased as part of the same household from 1955 until she married in 1962. The Master found that this made her an "eligible person" pursuant to para(d) of the definition in s6(1). He found: [1] "The plaintiff, Mrs Allan, is well advanced in life. She is presently 51 and her circumstances are not good. She needs a substantial capital sum to provide some funds for her maintenance and the contingencies in life, particularly bearing 2 UNREPORTED JUDGMENTS in mind that her husband is not well and is only fit for light work. Of importance in considering her claim is the closeness of her relationship to the deceased, and particularly the fact that she was almost a daughter to the deceased. It places her in a very similar position to a child of the deceased who is perhaps struggling or (living) a not well endowed life and is entitled to make a claim for some sum for future advancement. " On these findings the Master awarded the appellant $250,000. The appellant received her legacy and did not appeal within the period provided in the rules. She then became involved in dramatic events. On 18 November 1993 her middle son Mark shot and killed her husband while he was in bed in their home. The appellant saw the hideously wounded body of her dead husband soon afterwards. Mark fled in the family car, but was arrested some days later and charged with murder. In September 1994 he was convicted by a jury of manslaughter and sentenced to three years imprisonment. On 7 November 1994 he committed suicide in prison. Shortly afterwards on 15 November the appellant was diagnosed as suffering from cancer. On 20 April 1994 the appellant applied by motion for an extension of time to enable her to appeal from the Master's decision. On 27 June a Full Court extended time and the notice of appeal was filed on | July. It challenged the Master's order as inadequate on the evidence before him and in the alternative as inadequate in the light of later events. The appellant's position at the time of the hearing before the Master fully merited his order. Her husband had worked for most of his life for Film Australia but suffered a heart attack on 31 December 1991 and retired in November 1992, taking voluntary redundancy. He and a former colleague established a film business as a retirement project. Unfortunately the business failed and her husband had to use his superannuation and redundancy entitlements of $140,000 in paying the debts of the company. At the date of hearing debts of approximately $40,000 remained outstanding but the appellant and her husband had earmarked their savings of some $50,000 for their payment. Following the collapse of his film company the husband was unable to obtain work and was dependant on unemployment benefits. The appellant and her husband jointly owned a house at Baulkham Hills which was unencumbered. They also had a car. The appellant had worked for many years as a leading hand in the staff dining room at Westmead Hospital. On 24 April 1991 after the deceased had been diagnosed as suffering from terminal cancer the appellant gave up her job so that she could visit and be near the deceased in St Vincent's Hospital. She had been earning $350 per week. Following the death of the deceased the appellant was unable to return to her old job or to find other work and went on to unemployment benefits. At the time of the hearing she was in poor health due to alcohol abuse and a depressive illness following the death of the deceased. She and her husband had three adult sons who were no longer dependant on them. Counsel for the appellant was not able to identify any error of fact or law in the Master's reasons and his only submission was that the order was inadequate in all the circumstances. I cannot agree. Although there were no competing claims on the deceased's bounty I cannot accept that $250,000 was inadequate provision for the appellant at that time. She and her husband had an unencumbered house, a car, some small savings, no dependents and two social security payments. On this evidence the legacy of $250,000 was well within the URJ ALLAN v THE PUBLIC TRUSTEE (Handley JA) 3 range of the Master's judicial discretion. It was not at all surprising that no attempt was made to appeal from this decision at the time. The appellant also challenged the Master's order as inadequate in the light of later events. She sought to prove these by tendering three affidavits by herself, one by her solicitor, one by her sister and four medical reports. This additional evidence was objected to but the Court received it subject to objection. The additional evidence also established that since the hearing the appellant had purchased a house at Long Jetty for $182,582 and was living there with her eldest son Gary. She had rented the home at Baulkham Hills for $270 per week but there was no clear evidence of her outgoings or her net rental income. It was however sufficiently large to disqualify her from receiving social security payments. There was no evidence of the market value of the property but it was said to have been worth $200,000 in October 1992. It was also said that the house was unsaleable because of the shooting but this was not proved. The appellant had spent approximately $15,000 in converting the garage on the Long Jetty property to a flat for Gary. He is apparently either unable to work or to obtain employment and is in receipt of social security payments. There is no evidence as to what these are or as to any amounts paid to the appellant for board or as a contribution to the outgoings on the property. It appears that the appellant's other son Rod has returned to Brisbane, but she said that she was paying $150 per week for his "expenses". The additional evidence established that the appellant had continued to abuse alcohol. Following the death of her husband she received psychiatric treatmentS counselling, and further hospital treatment for her alcoholism. She was unable to find employment, assuming she was able to work, although there are a number of large public hospitals in the area. She was fifty three when the appeal was heard. On 15 November 1994 the appellant was diagnosed as suffering from cancer of the floor of her mouth. She underwent extensive surgery for removal of the tumour together with the associated lymph nodes in the upper right side of her neck. This was followed by radiotherapy which was completed during March 1995. She will have to be reviewed by her surgeon and radiotherapist at intervals of 2-3 months and her prognosis will remain guarded for some years. Unfortunately she continues to smoke and drink heavily. The Court was also informed by counsel for the respondent, without objection, of certain matters ascertained on informal discovery of documents by the appellant prior to the hearing of the appeal. I have included some of these in my summary of the further evidence. The first question is whether the Court should receive the further evidence. Since it related to matters occurring since the hearing the Court has a general discretion to receive it under s75A(7) and s75A(9) of the Supreme Court Act without proof of special grounds. The evidence would have been relevant and admissible if tendered at the trial. If I had concluded that the Master was wrong on the material before him so that his decision had to be set aside in any event I would have admitted the further evidence and taken it into consideration when exercising the discretions under the Act as on a rehearing. See Warr v Santos (1973) 1 NSWLR 432. However this course is not open since I have concluded that there was no appealable error. The question therefore is whether the further evidence should be received on other grounds. As Moffitt AP said in Warr u Santos at 434 the evidence "has the critical importance that it is sought to be availed of to disturb an otherwise 4 UNREPORTED JUDGMENTS unimpeachable determination after a hearing upon the merits." Moreover as Lord Pearson said in Mulholland u Mitchell [1971] AC 666 at 681-682: [2] "This is not a case of application being made after the time for appealing has expired. In such a case the end of litigation has been definitely reached, subject only to the court's power to extend the time. In such a case a very strict tule should be applied." The appeal was instituted pursuant to an extension of time granted on a motion filed five months after the normal time had expired. The extension was not opposed. One judge on the Full Court raised the possible relevance of the alternative remedy under s8 of the Act but in the absence of opposition the matter was not explored. With the wisdom of hindsight, it seems to me that the Court in future should refuse applications for extensions of time where the appellant proposes to rely in substance on evidence of later events. The ordinary rule stated by Lord Pearson applies, in my opinion, with even greater force in appeals under this Act, because the appellant has another and more convenient remedy under s8. This provides: [3] ".... on an application... made by or on behalf of an eligible person in whose favour an order for provision... has previously been made, if the court is satisfied that there has been... a substantial detrimental change in the circumstances of the eligible person, it may order that such additional provision be made... as in the opinion of the court, ought... to be made for the maintenance, education or advancement in life of the eligible person." It is more convenient because the further hearing will not involve the time of three judges in this Court. Procedures such as discovery and service of subpoenas and any cross-examination can also be conducted more conveniently in the Division. I do not suggest that the power under s8 is completely open-ended. In my view it will always be relevant to consider whether an application should be refused in the exercise of the Court's discretion because of the public interest in the finality of litigation. Compare Hilliger Hilliger (1952) 62 SR (NSW) 105 and Hardaker v Wright and Bruce Pty Ltd (1960) 62 SR (NSW) 244. However this consideration will also be relevant in any appeal based on evidence of later events. The Master's order was intended to make adequate provision for the proper maintenance and advancement of the appellant for the rest of her life. Despite the existence of s8 the order was intended to make a "once and for all" provision for her. In form it was final and not interim. The appellant was then aged fifty one and although there was evidence that she suffered from depression and had abused alcohol there was no suggestion that she faced a life threatening illness with the possibility of a greatly reduced life expectancy. Similarly, although her husband had suffered a heart attack nearly two years earlier, he was said to be fit for light work and there was no reason to think that he was likely to die from heart disease or other causes in the near future. It can fairly be said that subsequent events have in the appellant's case substantially and in her husband's case totally falsified these assumptions. However, it does not follow that this Court should receive the further evidence. The Master said that the appellant "needs a substantial capital sum to provide some funds for her maintenance and the contingencies of life." The fact that some of life's contingencies occurred sooner rather than later and in a violent rather than natural manner does not require this Court to hold that the Master's decision has been falsified. The position is analogous to that which arose in Doherty v URJ ALLAN v THE PUBLIC TRUSTEE (Handley JA) 5 Liverpool Hospital (1991) 22 NSWLR 284. There jury awarded the plaintiff, then aged forty nine, damages of $244,624. He died of a heart attack three months later and the defendant sought to have the damages substantially reduced. This Court refused to act on evidence of the plaintiff's death for this purpose although it had to act on it to amend its record. Gleeson CJ said at 292-293: [4] "... A successful plaintiff is awarded a lump sum which is fixed 'once for all'. As a general rule, once that sum is fixed, it is not revised upwards or downwards in the light of subsequent developments... in the case of actions for personal injuries the general public interest in finality of litigation does not operate merely as a desirable objective. It is an integral part of the system by reference to which a plaintiffs rights are determined." He said later at 296-297: [5] "In the present case the principle in favour of the finality of litigation is relevant, but not as weighty as it might be in other circumstances. After all it was the plaintiff himself who appealed... What appears to me to be of more importance is the nature of the action, involving as it did the awarding once for all of a lump sum based upon the facts known at the date of trial, coupled with the circumstance that the relevant event which occurred following the death was the realisation of a specific contingency... which the jury were specifically instructed to allow for..." In the present case the Master did not state that he was allowing for any particular contingencies but he did refer to the fact that the husband was not well and that the appellant's health had deteriorated substantially since the death of the deceased. In each case further health problems were obviously foreseeable. The Chief Justice asked during argument whether it would have made any difference to the appellant's argument if her husband had died of a heart attack. In my opinion the question was never satisfactorily answered. Because of s8 orders under this Act do not have the same legal finality in favour of defendants as awards of damages, but the appellant is seeking to rely on the further evidence in an appeal rather than in an application under the section. The Court was told that the appellant had made an application under s8 to the Master which he dismissed on 15 December 1994 partly at least because of this pending appeal. There has been no appeal from that decision but we were told that if this appeal failed the appellant might make a further s8 application. In my opinion, the existence of an alternative, and more convenient, remedy under s8 is a factor which reinforces rather than derogates from the principles applied in Doherty v Liverpool Hospital. I would therefore reject the further evidence. It necessarily follows that the appeal fails and should be dismissed with costs. I would add that the deaths of the appellant's husband and second son have reduced the calls on her financial resources and increased her assets. Her husband's share of the matrimonial home accrued to her by survivorship freed from any legal obligation for payment of his debts. It is also possible that she may not have secured an order for such a large capital sum if her original application had come on for hearing after her cancer had been diagnosed. She may have obtained either an interim (s9(5)) or final order for the payment of periodic sums (s11(1)(a)(ii)). Such an order may have proved less beneficial to the appellant and her family in the long run than the lump sum order she did secure. She currently owns two unencumbered houses worth over $400,000. If she needs money she could, if she chose, sell or mortgage the house at Baulkham Hills. 6 UNREPORTED JUDGMENTS Powell JA I have read, in draft, the Judgment which has been prepared by Handley JA, with which Judgment Gleeson CJ has expressed his agreement. As the member of the Court hearing the appeal who raised the question of an application under s8 of the Family Provision Act 1982 ("the FP Act') (see Judgment Handley JA P 6), I might be expected to do no more than agree with Handley JA's reasons for the Orders which he proposes for the disposition of this Appeal. However, the matters to which I refer below have led me to look more carefully at the question whether the evidence sought to be tendered by the Appellant on the hearing of the appeal ought to be received by the Court. Those matters are: 1. having had occasion recently (Wentworth v Wentworth!) to consider, with some care, the circumstances in which the right to make an application under s8 of the FP Act might be invoked, I have concluded that that right may only be invoked when the relevant Order, or most recent Order, was one for continuing maintenance, and that it may not be invoked when that Order was for a lump sum provision; [6] 2. the question of an application under s8 of the FP Act was not raised until the submissions in reply of counsel for the Appellant (Transcript at 17) at which time we were informed that such an application had been made but - upon what grounds we were not informed - had been dismissed; it following that, even if my view as to the circumstances in which such an application might be made be in error, the Appellant, on any future application, might be faced with some form of estoppel. That the Court may, in its discretion, admit further evidence on the hearing of an Appeal is undoubted. However, as the Court's discretion, in this regard, is a judicial, rather than an unfettered, one, it must be exercised in accordance with established principle. The approach to be adopted by an appellate court, when invited to exercise its discretion to admit further evidence, was discussed by Lord Wilberforce in Mulholland v Mitchell2. In that case, His Lordship, after referring to the only three reported cases then known (Curwen v James3; Jenkins v Richard Thomas and Baldwins Ltd4+ and Murphy v Stone-Wallwork (Charlton) Ltd5) continued®: "It is possible to extract from these cases some indications as to the way in which the Court of Appeal's discretion may be exercised. In Curwen v James appeal could be made to the argument that the court should not speculate where it knows, but my noble and learned friend, Lord Pearson, pointed that even so neat an axiom had its dangers. The fact that the marriage occurred so close to the trial was no doubt a factor. In Jenkins evidence was admitted as to the plaintiff's inaptitude for work thought suitable for him at the trial, but that decision was regarded as dubious in Murphy. In Murphy an assumption, held at the trial, that the plaintiff would not be dismissed was falsified by the defendant, and evidence as to that was admitted. Their Lordships' thought that not to do so would be inequitable. Court of Appeal 24th August 1995 [1971] AC 666 [1963] 1 WLR 748 [1966] 1 WLR 476 [1969] 1 WLR 1023 [1971] AC 679-680 ANRYNS URJ ALLAN v THE PUBLIC TRUSTEE (Powell JA) 7 These cases are useful as instances but they cannot be generalised into a formula. I do not think that, in the end, much more can usefully be said than, in the words of my noble and learned friend, Lord Pearson, that the mater is one of discretion and degree (Murphy [1969] 1 WLR 1023, 1036). Negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judge's estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice. All these are only nonexhaustive indications; the application of them, and their like, must be left to the Court of Appeal. The exceptional character of cases in which fresh evidence is allowed is fully recognised by that court." The approach so described by his Lordship has been referred to with approval in this Court in Radnedge v Government Insurance Office' and, more recently, in Doherty v Liverpool District Hospital'. Approaching this question in the way suggested, I have, after much consideration, concluded that, although the matter is very close to the border line, this is not a case in which the further evidence which the Appellant seeks to have the Court admit ought to be admitted. Towards the end of his Judgment, Master Macready summarised the Appellants' position in the following way (Appeal Book 276): [7] "The Court's consideration must be related to adequate provision for, in this case, advancement in life. The plaintiff, Mrs Allan, is well advanced in life. She is presently fifty-one and her circumstances are not good. She needs a substantial capital sum to provide some funds for her maintenance and the contingencies in life, particularly bearing in mind that her husband is not well and is only fit for light work. Of importance in considering her claim, is the closeness of her relationship to the deceased, and particularly the fact that she was almost a daughter to the deceased. It places her in a very similar position to a child of the deceased who is perhaps struggling or lived a not well endowed life and is entitled to make a claim for some sum for future advancement. [8] Ihave had cited to me the matter of Eggler v Mitchelmore, decision of the Court of Appeal, 11 November 1992 in which somewhat less precarious circumstances concerning employment prospects the court held that a provision of some $250,000 was an appropriate figure." While it is true that the Master could hardly have foreseen the events of 1993 and 1994, the passage from his Judgment which I have set out above makes it clear that, in considering what, if any, was the Order for provision appropriate to be made in favour of the Appellant, he - rightly in my view - attempted to make some estimate of what the future might hold for the Appellant and her late husband. This being so, the present case, as it seems to me, falls within the first of the situations discussed by Lord Wilberforce in Mulholland v Mitchell9, it following that the evidence which the Appellant seeks to tender ought not to be received. I agree that the Appeal should be dismissed with costs. 7. (1987) 9 NSWLR 235 8. (1991) 22 NSWLR 284 9. (supra) 8 UNREPORTED JUDGMENTS Appeal dismissed with costs. COUNSEL: Appellant: DW ELLIOTT Respondent: L ELLISON/MS CRUISE SOLICITORS: 10 Appellant: MONTE GILDEA Respondent: HEGARTY AND ELMGREEN