Fitter v Public Trustee & Ors [2007] NSWSC 1487

New South Wales Supreme Court

CITATION : Fitter v Public Trustee & Ors [2007] NSWSC 1487

HEARING DATE(S) : 13 December 2007

JUDGMENT DATE : 13 December 2007

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 13 December 2007

DECISION : Summons dismissed.

CATCHWORDS : PRACTICE AND PROCEDURE – SUBMITTING APPEARANCE – Party who files submitting appearance cannot later set aside judgment on ground that it was entered in party's absence unless submitting appearance procured by fraud or other vitiating factor.

LEGISLATION CITED : - Forfeiture Act 1995 (NSW) – s 11 - Uniform Civil Procedure Rules 2005 (NSW) – 6.11, 28.2, 36.16(2)

- BP Australia Limited v Brown [2003] NSWCA 216, (2003) 58 NSWLR 322 CASES CITED : - Cameron v Cole (1944) 68 CLR 571 - Trust Company of Australia Limited v Perpetual Trustees (WA) Limited (No 2) (1995) 36 NSWLR 654

Kylie Hope Fitter (Plaintiff) Public Trustee (First Defendant) PARTIES : George Sidney Fitter (Second Defendant) (discontinued 13.12.07) Grant Fitter (Third Defendant) (discontinued 13.12.07) Gwendoline Ann Robb (Fourth Defendant)

FILE NUMBER(S) : SC 3589/07

Ms A.J. Tibbey (Plaintiff) COUNSEL : L.J. Ellison SC (First Defendant) M.W. Young (Fourth Defendant)

SOLICITORS : Peter Baker (Plaintiff) Roberts Mann (First Defendant)

3589/07 Fitter v Public Trustee and Ors

JUDGMENT – Ex tempore 13 December, 2007

1 The Plaintiff, Ms Fitter, applies for an order setting aside final orders of the Court made on 24 November 2005 which applied the forfeiture rule under s 11 of the Forfeiture Act 1995 (NSW) to her entitlement to claim any benefit in her mother's estate. The application is made under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") 36.16(2)(b) on the ground that the orders were made in Ms Fitter's absence. 2 On 22 August 2002 Ms Fitter was found not guilty of the murder of her mother by reason of mental illness. The principal participants in the deceased's death were Ms Fitter's father and her brother. They too were found not guilty by reason of mental illness. Ms Fitter was ordered to be detained in a juvenile justice centre until released by due process of law. 3 On 4 August 2003 the Public Trustee obtained letters of administration cta in respect of the deceased's estate. On 30 June 2004 the Public Trustee filed a Summons in proceeding 3717 of 2004, the defendants in those proceedings being Ms Fitter, her father, her brother and Ms Robb, who is the deceased's sister and her beneficiary on intestacy. The Public Trustee's Summons sought a declaration that the involvement of Ms Fitter, her father and her brother in the death of the deceased invoked the forfeiture rule under the Forfeiture Act and it sought directions for the distribution of the intestate estate of the deceased. 4 On 14 June 2005 a solicitor, Mr Baker, filed a Notice of Appearance in the proceedings on behalf of Ms Fitter. On 15 June 2005 Mr Baker attended a call over at which the proceedings were set down for trial on 9 November 2005. On 18 October 2005 Mr Baker served a draft Cross Claim on the Public Trustee in which Ms Fitter sought relief under the Forfeiture Act and also sought leave to bring a Family Provision Act claim against her mother's estate out of time. On 19 October 2005 Ms Fitter swore an affidavit in support of her proposed Cross Claim. 5 On 27 October 2005 Mr Baker advised the solicitor for the Public Trustee that Ms Fitter would not be seeking any relief in the proceedings and that she abandoned any claim that she might have against the deceased's estate. 6 On 7 November 2005 Mr Baker served an Amended Notice of Appearance whereby Ms Fitter submitted to all orders in the proceedings save as to costs. 7 On 9 November 2005 the proceedings came on for final hearing before Lloyd AJ. When the case was called Mr Baker appeared for Ms Fitter and was then excused from further attendance. In the course of the proceedings, but after Mr Baker had left, Counsel raised the question of what direction or orders might be necessary to deal with the proceeds of the deceased's superannuation policy. 8 No relief as to the superannuation policy had been expressly sought by the Public Trustee in its Summons. However, Mr Baker had been in communication with the trustees of the superannuation fund since early 2005. He had been advised by letter dated 4 March 2005 that the trustees of the fund would make no determination as to who should receive the benefits of the superannuation policy until the Court had decided the Public Trustee's application under the Forfeiture Act. 9 On 2 September 2005 Mr Baker made an application on behalf of Ms Fitter to the superannuation fund trustees for a benefit under the deceased's policy. On 13 September 2005 the trustees again advised Mr Baker that a decision on Ms Fitter's application for benefits under the policy could not be made until the Court had decided the Public Trustee's application for orders under the Forfeiture Act. It must have been clear to Mr Baker by the time of the trial before Lloyd AJ that the result of the Public Trustee's application to the Court would probably also determine the fate of Ms Fitter's application to the superannuation fund trustees. 10 Ms Fitter has given evidence that, prior to the commencement of the trial on 9 November 2005, she instructed Mr Baker that she did not want to proceed. She said that her reasons were that she could not face the emotional trauma that the trial would inevitably inflict upon her. However, she said also that she discussed her decision with Mr Baker and she received his advice. She understood that her decision not to participate in the Public Trustee's proceedings would mean that she would probably get nothing from her mother's estate. It was in these circumstances that Mr Baker filed a submitting appearance on Ms Fitter's behalf. 11 After a full hearing of the Public Trustee's proceedings in which the other defendants appeared and participated, Lloyd AJ made the following orders affecting Ms Fitter on 24 November 2005: "(2) An Order that pursuant to s 11 of the Forfeiture Act 1995 the forfeiture rule shall apply with respect to the First, Second and Third Defendants as if the First, Second and Third Defendants had been found guilty of the murder of Fiona Ellen Fitter.