New South Wales Supreme Court CITATION : Byrne v Public Trustee [2002] NSWSC 177 FILE NUMBER(S) : SC 2894/99 HEARING DATE(S) : Friday, 8 February 2002 JUDGMENT DATE : 8 February 2002 PARTIES : Dwane Nielsen Byrne (Plaintiff) Public Trustee (Defendant) JUDGMENT OF : Master McLaughlin COUNSEL : P. Hallen SC (Plaintiff) P. Blackburn-Hart (Defendant) SOLICITORS : Minter Ellison Lawyers (Plaintiff) P J Whitehead, Solicitor for Public Trustee (Defendant) LEGISLATION CITED : Family Provision Act 1982 Supreme Court Rules DECISION : 1. Orders as in paragraphs 1 and 2 in notice of motion filed by the Plaintiff on 11 December 2001.; 2. Order that the solicitors for the Plaintiff pay the costs of both parties of and incidental to the aforesaid notice of motion, the costs of the Defendant to be on the indemnity basis. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER McLAUGHLIN Friday, 8 February 2002 2894/99 DWANE NIELSON BYRNE -V- THE PUBLIC TRUSTEE – ESTATE OF ALICE BERYL BYRNE JUDGMENT 1 MASTER: These proceedings were instituted by summons filed on behalf of the plaintiff, Dwane Nielson Byrne on 25 June 1999. For reasons to which I will shortly advert, that summons was not served. Neither was any affidavit filed in support of that summons. 2 The Court, of its own motion, on 25 January 2001 sent to the solicitors for the plaintiff a letter enclosing the provisions of Part 32A of the Supreme Court Rules and giving to the plaintiff notice that the Court would, of its own motion, dismiss the proceedings upon the expiration of 28 days from the date of that letter, unless a party satisfied the Court that special circumstances exist that render it desirable that such an order should not be made. 3 No response was made on behalf of the plaintiff to that letter. In consequence, on 28 February 2001 Assistant Registrar Howe made an order ex parte that the proceedings be dismissed pursuant to the provisions of Part 32A rule 2 of the Supreme Court Rules. 4 The substantive proceedings, which were instituted by summons filed on 25 June 1999, sought an order for provision out of the estate of the late mother of the plaintiff, being Alice Beryl Byrne (to whom I shall refer as "the deceased"). 5 The deceased died on 26 December 1997. The defendant to the summons, being the Public Trustee, is the executor named in the will of the deceased dated 15 June 1987. Probate of that will was granted to the Public Trustee on 10 June 1998. 6 The summons was filed within the period of eighteen months after the death of the deceased. The summons, as I have already observed, was not served upon the defendant within the period of three months after filing. 7 The explanation offered on behalf of the plaintiff for the fact that the summons was not served within the prescribed period of three months, after its filing, for the fact that no affidavit was filed in support of the summons and for the fact that there was no response on behalf of the defendant to the letter of the Court of 25 January 2001, and for the failure of the plaintiff to bring the present application in a timely fashion, is set forth in the affidavit of Susan Elizabeth Hooke sworn on 11 December 2001. Mrs Hooke is the solicitor having the carriage of the matter in the firm of solicitors acting on behalf of the plaintiff. 8 It is recognised in that affidavit, and Senior Counsel who has appeared at today's hearing on behalf of the plaintiff recognises, that the fault which has brought about the dismissal of the proceedings is attributable wholly and solely to the conduct, or to the lack of conduct, of Mrs Hooke. The unfortunate family circumstances of Mrs Hooke's domestic situation which are outlined in her affidavit could in no way excuse, even if they go in some way to explain, her failure to carry out her professional duties on behalf of the plaintiff. 9 The plaintiff is himself in no way at fault in this matter. 10 The notice of motion filed on behalf of the plaintiff on 11 December 2001 by which the present application is made seeks an order that the dismissal of the proceedings be set aside and an order that the plaintiff be allowed to serve the summons outside the three months' period, recognises that it is the conduct of the solicitor for the plaintiff that has made necessary the present application and has been the cause of the situation in which the plaintiff now finds himself. 11 Paragraph 4 in that notice of motion seeks an order that the solicitor for the plaintiff pay the costs of and incidental to that notice of motion. 12 The defendant does not point to any prejudice which might result from the granting of the relief sought in the notice of motion. The estate of the deceased has not yet been fully administered. 13 Upon the evidence which has now been placed before the Court in support of the summons, the plaintiff certainly has a reasonable claim to an order for provision. The plaintiff, indeed, is currently residing in the house property which is the chief asset of the estate. 14 It has, however, been submitted on behalf of the defendant that the present application should be dismissed and that the proceedings which were dismissed by the ex parte order made on 28 February 2001 should not be reinstated. The defendant in support of that submission points to the fact that it is open to the plaintiff to institute fresh proceedings, albeit out of time, and in those fresh proceedings to seek an extension of time. 15 It seems to me, however, that for the plaintiff to be required to do that would be a somewhat empty exercise. The plaintiff doubtless would rely in support of an extension of time upon the conduct of the solicitor, which is the basis of the plaintiff's present application. 16 It must also be recognised that the plaintiff, in the event that he be deprived of the substantive relief which he is seeking in the summons, would have a cause of action in professional negligence against his solicitor. But to establish an entitlement to relief in such proceedings in professional negligence the plaintiff would, of course, need to conduct the case which he would otherwise have conducted in his summons seeking the relief under the Family Provision Act. 17 It seems to me that no good purpose would be served in requiring the plaintiff, totally blameless in the circumstances of the present case, either to institute fresh proceedings out of time under the Family Provision Act and to seek an extension of time, or to institute proceedings for professional negligence against his solicitor, which would require the hearing of the substance of his claim under the Family Provision Act. 18 The appropriate course in my conclusion is that, upon review, I should set aside the order of the Registrar dismissing the proceedings, that I should allow the summons to be served outside the three months' period and that I should make an order that the solicitor for the plaintiff pay the costs of the plaintiff and of the defendant of the present application. 19 I make the following orders: (1). I make orders as in paragraphs 1 and 2 in the notice of motion filed by the plaintiff on 11 December 2001. (2). I order that the solicitor for the plaintiff pay the costs of both parties of and incidental to the aforesaid notice of motion, the costs of the defendant to be on the indemnity basis. ********** Last Modified: 05/01/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.