New South Wales Court of Appeal CITATION: Allen v The Public Trustee [2006] NSWCA 49 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 8 March 2006 JUDGMENT DATE: 17 March 2006 JUDGMENT OF: Mason P at 1; Giles JA at 2; Bryson JA at 29 DECISION: Appeal dismissed with costs. CATCHWORDS: Family Provision Act - estate left equally to four of five children - application by fifth child - decision that no provision should be made - whether error in discretionary decision - no error shown. LEGISLATION CITED: Family Provision Act 1982 Allen v Public Trustee [2005] NSWSC 76; CASES CITED: House v The King (1936) 55 CLR 499; Singer v Berghouse (1994) 181 CLR 201. PARTIES: Anthony Richard Allen - Appellant The Public Trustee - Respondent FILE NUMBER(S): CA 40190/05 COUNSEL: Appellant in person P Hallen SC & P Gromley - Respondent SOLICITORS: Appellant in person Brian Maher, Solicitor for the Public Trustee LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): ED 4428/03 LOWER COURT JUDICIAL OFFICER: Windeyer J - 22 February 2005 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40190/05 ED 4428/03 MASON P GILES JA BRYSON JA Friday 17 March 2006 ALLEN v THE PUBLIC TRUSTEE Judgment 1 MASON P: I agree with Giles JA. 2 GILES JA: The testator died on 30 October 2002, aged 83. He left a will dated 24 June 1999, probate of which was granted to the Public Trustee. He gave the whole of his estate in equal shares to four of the five children of his first marriage, to the exclusion of Mr Anthony Allen. Mr Allen applied under the Family Provision Act 1982 ("the Act") for an order that he receive one-fifth of the estate. Windeyer J dismissed the summons. 3 I will not repeat all the facts as described by the judge, which can be found in Allen v Public Trustee [2005] NSWSC 76. 4 The distributable estate of the testator was approximately $825,000. Mr Allen, born in 1954, was the fourth of the five children. It was accepted at the trial that the difference between a one-quarter share in the estate and a one-fifth share in the estate was not such that the financial positions of the other four children required consideration. 5 Mr Allen had no assets of significance, but controlled a discretionary trust in which was vested the property at Balgowlah in which he lived, and could bring about the distribution of the whole of the trust assets to himself. The property was worth about $800,000. He was married and had three adult children. For at least twenty years until about 1992, Mr Allen had successfully engaged in business in the accounting/book-keeping and computing areas. He had not thereafter earned significant remuneration, in the circumstances next described. 6 For many years, Mr Allen had been engaged in what Windeyer J described as "almost incessant litigation", flowing from problems with his former matrimonial home at Balgowlah Heights. His Honour said that Mr Allen placed the problems at the feet of solicitors, NRMA Insurance and the Building Services Corporation, and that he had sued, often without legal assistance, various solicitors, Manly Council, NRMA Insurance, the New South Wales Government and others; he said that Mr Allen was preoccupied with his claims and worked on them more or less full time. Mr Allen and his wife were divorced in 1998, and there was a property settlement. It seems that Mr Allen's assets then went into the discretionary trust, or were used for his litigation or, since he was not working because working on his claims more or less full time, for his support. The litigation had left Mr Allen with orders for costs against him, and he told the judge that the costs were of the order of $250,000-$300,000. 7 The judge accepted that, if the trust assets were left out of account, Mr Allen had been left without adequate provision for his maintenance and advancement having regard to his creditors and potential creditors. His Honour added, however, that Mr Allen was "in a position to alleviate this to a large extent", and in the result concluded that he "has not established a case for provision". He gave the summary - "He had no close relationship with his father. He did not visit him in the nursing home. As a modest unit would be sufficient for his needs he is in a position to arrange more or less protected accommodation and yet pay out some or perhaps all of his creditors and get back to work. If he wishes to do so, the plaintiff can put himself into a position where his life gets back into order." 8 Although conditioned upon disregard of the trust assets, I take his Honour to have held that the so-called "jurisdictional question", in the first stage of the two-stage process described in Singer v Berghouse (1994) 181 CLR 201 at 208-9, should be taken to have been satisfied; he decided in the second stage that no provision should be made. There is, of course, a similarity in the considerations for the determination at each stage, see Singer v Berghouse at 209-210, and the availability of the trust assets was important at both stages. In the result, however, the judge held against Mr Allen in the exercise of the power in s 7 of the Act to "order that such provision be made … as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person". 9 The judge's summary noted above must be read and understood in the light of the reasons as a whole. From those reasons the following appears. 10 His Honour considered in some detail Mr Allen's relationship with the testator. He described the testator as a "somewhat difficult man", and as irascible and rather violent. After he left home as an adult Mr Allen did not have a close relationship with the testator, although he saw him reasonably regularly, but the relationship came to an end in 1993 as a result of an incident when Mr Allen remonstrated with the testator over his treatment of his mother, and there was a heated argument and Mr Allen hit the testator. His Honour accepted as likely Mr Allen's evidence that in 1997 the testator rang and offered an apology, which was accepted, but said that "it could never be said that the plaintiff and his father ever got back to any close relationship". 11 In this connection, the testator made a will in 1998, in the same terms as his 1999 will which was made following his remarriage. When he did so he signed, with the statement "confirm the above reasons still apply as at 25/3/98", a document dated 4 April 1995, apparently to do with an earlier will stating his reasons for giving Mr Allen a "lesser share" of his estate than his other children. One reason was that Mr Allen was well off financially and had no need of the estate. Another was that Mr Allen "specifically asked me not to leave him anything in my will". The third was that Mr Allen "attacked me physically" in 1993, with some elaboration of the incident and its sequelae, and that he had not seen him since. The judge accepted that the circumstances had "changed to some extent" at the testator's date of death, and that while the 1993 incident was conduct to be taken into account it would not preclude a claim for provision. I do not think the 4 April 1995 document, or the 1993 incident, materially contributed to his Honour's decision that Mr Allen had not established a case for provision. Even after the apology, Mr Allen and the testator were not close, to the point that his Honour noted that Mr Allen did not visit the testator in the nursing home, and his Honour's reasons for declining to make an order in favour of Mr Allen did not involve what was said in the 4 April 1995 document. 12 His Honour considered Mr Allen's asset position, and his difficulty in earning remuneration because of his engagement in litigation; some health problems were noted, but his Honour said that Mr Allen was "of an age when he is able to work and his health problems in no way prevent him from working". The judge accepted that Mr Allen might be able to get back to work if he were to "sit down with his creditors and withdraw himself from all costs", but described that only as a "possibility". At another point he said that if Mr Allen "could set behind him what have become the wasted years of litigation and look forward, then it is likely he would be able to obtain work". 13 His Honour referred to Mr Allen's "wish list" of house repairs, a new car, assisting his children with HECS debts and a capital sum "as a protection". He correctly observed that "assisting with HECS debts was not a need for which provision was required". He noted that Mr Allen had not suggested that he would use any money he obtained from the estate to pay off his creditors. The judge nonetheless appears to have contemplated that any money could go to creditors, because he said that use to pay off creditors, even where the provision would not pay all creditors, did not mean that provision should not be made; he said that Mr Allen might spend some of any money obtained on current litigation against solicitors "if other creditors did not get in first". 14 His Honour observed that the trust sheltered the Balgowlah home from the demands of creditors, and said as the explanation for Mr Allen being in a position to alleviate to a large extent his position if the trust asserts were left out of account - "As it is quite unlikely that any of his children would wish to live with him again, there is no need to retain the Balgowlah home held in the trust for that purpose. The plaintiff can arrange to sell that property and take the whole of the proceeds for his own benefit. If he wished, pursuant to the terms of clause 7 of the trust, he could arrange for a capital distribution to be made to him and he could arrange for a less expensive property to be held in the trust, again protecting that from his creditors." 15 Central to the judge's reasoning, then, was that he did not think that the Court "ought" make provision for Mr Allen's maintenance and advancement in life when Mr Allen had access to money and, if he abandoned the life of incessant litigation, the capacity to earn a living; and contributing to this was the finding as earlier described that Mr Allen and the testator were not close. Inherent in the reasoning, in the light of the judge's reasons as a whole, was that his Honour did not think provision should be made to enable Mr Allen to pay off, perhaps only in part, the "wasted years of litigation", or to fund their continuance. 16 The judge's decision was discretionary, the circumstances in which it is open to appellate review being confined in accordance with the principles described by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-5: see Singer v Berghouse at 211-12. In House v The King their Honours said - "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 17 Mr Allen was represented by counsel before Windeyer J. He appeared in person on appeal. His written submissions were extensive, but both in those submissions and orally he went far beyond matters properly arising in the appeal. 18 First, Mr Allen complained of many instances in which the judge failed to pay regard to material which, although in affidavits filed prior to the trial, was not read. As appears from the transcript, Mr Allen's counsel expressly did not read a great deal of the material in the affidavits. From perusal of the affidavits, it can readily be seen why counsel took that course. The judge was not in error in failing to pay regard to the unread material; still less was his failure to do so, as was at times suggested in Mr Allen's submissions, indicative of a bias against Mr Allen. As was explained to Mr Allen, his Honour was bound to act only on material admitted into evidence before him. 19 Secondly, Mr Allen's submissions were considerably devoted to establishing that the testator had been violent, unable to control his emotions, and in some respects delusional, and further that in various ways Mr Allen's siblings had been unsympathetic or opposed to Mr Allen with the suggestion that they had influenced the testator to exclude Mr Allen from a share in his estate. No case of the latter kind had been put at the trial. Apart from that, Mr Allen acknowledged that his submissions were directed to the contention that the 1999 will should not have been granted probate because the testator lacked testamentary capacity or was affected in making the will by the undue influence of the siblings. It was explained to Mr Allen that the validity of the will and the grant of probate were not in issue in the appeal. 20 Thirdly, Mr Allen asked this Court to make orders going well beyond upholding the appeal and ordering provision out of the estate of the testator. He claimed orders in some of his litigation against the solicitors, Manly Council, NRMA Insurance and the Government, an order that the Office of State Revenue repay certain money, and an order that Centrelink pay him other money; this is not exhaustive. The submissions were also considerably devoted to the merits of his claims in the litigation flowing from the problems with the Balgowlah Heights property, and to assertion of systemic deficiencies in government and legal institutions. In these and other respects it was evident that Mr Allen's litigious path over many years was not necessarily rational, but was likely to be maintained. It was explained to Mr Allen that these matters did not form part of the appeal. 21 The intrusion of much which did not properly arise in the appeal made it difficult to winnow from Mr Allen's submissions, which perhaps understandably also did not pay heed to the confines of appellate review of a discretionary decision, possible challenges to the decision under appeal. 22 One area of the submissions, although primarily directed to the validity of the will and the grant of probate, bore upon Mr Allen's relationship with the testator and could have been seen as a submission that there was error in finding that the relationship was not close. He submitted, in substance, that his siblings were also not particularly close to the testator, and that his own relationship with the testator had to be judged against the testator's difficult nature to the extent of delusional behaviour in some respects. Despite the impediments to a close relationship, there had been the apology and its acceptance. Here also it may have been submitted, in substance, that the siblings had alienated Mr Allen in the testator's affections, so that the absence of a close relationship was explained for reasons not adverse to a claim for provision. 23 It is difficult to see the basis for much of this without the unread materials. Alienation by the siblings was not put at the trial, and is not made out even on the materials to which Mr Allen referred in his submissions. The judge was well alive to the circumstances in which a relationship with the testator was to be assessed, and in my view his assessment of it as not close took into account the testator's nature and has not been shown to be incorrect. 24 Mr Allen made particular complaint that the judge had erred in saying that the testator "re-signed" the 4 April 1995 document in 1998; he said that the copy did not indicate an original signing in April 1995, and made plain his doubt as to the authenticity of the document, the original of which he had not seen. No doubt had been cast upon its authenticity at the trial. It may or may not be that there was not a re-signature, but there was certainly a signature in 1998; and in any event, for the reasons I have given, I do not think that the testator's signature of the document as expressing reasons for excluding Mr Allen was material in the judge's decision that a case for provision had not been made out. 25 At one point Mr Allen may have submitted that there was factual error so far as the judge considered that the Balgowlah property could be replaced by a less expensive property. He said in his oral submissions to the effect that his children, or at least some of them, were now close to him and he should have a home large enough for them to stay; he said also that he was loath to sell the Balgowlah property, because he wished to keep it for his children. None of this made out error in the judge's determination. 26 Mr Allen's oral submissions came to focus on his needs said to warrant provision out of the estate of the testator. There was some uncertainty, but the thrust of the submissions was that he wanted money to continue with his litigation, either to come to settlements or if that were not possible to continue to conclusions. It appears that Mr Allen's costs burden had to some extent crystallised, and was less than the $250,000-$300,000 of which he told Windeyer J. There may have been an inconsistency between the judge's understanding whether any money Mr Allen obtained from the estate would go to creditors and what Mr Allen told this Court, but the answer may be that in Mr Allen's eyes he did not owe the costs to the other parties to the litigation, rather they owed him money. I do not think there was any material variation from the basis on which Windeyer J came to his determination. 27 Having considered the whole of Mr Allen's written and oral submissions, I am not persuaded that error of any of the kinds described in House v The King has been shown. I take Mr Allen's submissions to have included that refusal to provide for him out of the testator's estate was unreasonable or plainly unjust, but I do not accept that position. At the trial Mr Allen expressly confined his claim to provision in the amount of one-fifth of the estate, that is, approximately $165,000. Mr Allen controlled assets from which he could reasonably have obtained a sum of that order, and if he were to abandon the incessant litigation could support himself. If he were to be given provision of such a sum, it would probably go to creditors resulting from his litigation or be used in continuance of his litigation. In essence, he was asking that money be taken from his siblings and given to him, rather than he use for that purpose assets he had quarantined from his creditors through the trust. It does not strike me as unreasonable or plainly unjust to decline to do so. 28 I propose that the appeal be dismissed with costs. 29 BRYSON JA: I agree with Giles JA. ********** 20/03/2006 - appearance added - Paragraph(s) coversheet 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.