Supreme Court New South Wales Medium Neutral Citation: Carolyn Margaret Hickin v Robyn Patricia Carroll & Ors [2013] NSWSC 1686 Hearing dates: 11 November 2013 Decision date: 14 November 2013 Jurisdiction: Equity Division Before: Kunc J Decision: Hearing reopened to require contradictor Catchwords: PRACTICE AND PROCEDURE - Contradictor - Hearing reopened on Court's own motion before judgment to require contradictor Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Tawil v Public Trustee of New South Wales SCNSW; unreported, 1 July 1998 Texts Cited: Butt, P "Testamentary Conditions in Restraint of Religion" (1977) 8 Syd LR 400 Category: Procedural and other rulings Parties: Carolyn Margaret Hickin (Plaintiff) Robyn Patricia Lyons (First Defendant) Paulene June Carroll (Second Defendant) Anthony John Carroll (Third Defendant) Susan Margaret Klar (Fourth Defendant) Representation: Counsel: Mr P.P. O'Loughlin (Plaintiff) Mr M. Gorrick and Ms J. Walker (Defendants) Solicitors: Warren McKeon Dickson (Plaintiff) L. Rundle & Co (Defendants) File Number(s): 2013/143800 Publication restriction: No Judgment Summary 1Patrick Carroll ("Mr Carroll") died on 16 April 2012. He left a will made on 15 December 2011 (the "will"). Probate of the will was granted to his executrices being the plaintiff (his step-daughter Ms Hickin) and his daughter Ms Klar (both of whose names are misspelt in the will). 2The plaintiff seeks this declaration: A declaration that the conditions attached to the gift in Clause 3(xiv) of the last will of the late Patrick Carroll made on 15 December 2011 are void and of no effect to the intent that the gifts in sub-clauses (a), (b), (c) and (d) of clause 3(xiv) of the will are absolute gifts. 3Sub-clause 3(xiv) is: (xiv) I make the following gifts of remainder to my children subject to and dependent upon them becoming baptised into the Catholic Church within a period of three months from the date of my death and such gifts are also subject to and dependent my children attending my funeral: - (a) ROBYN PATRICIA LYONS - 8.44% (b) PAULINE JUNE CARROLL - 8.44% (c) ANTHONY JOHN CARROLL - 8.44% (d) SUSAN MARGARET KLAH - 10.56% in the event that they should neither convert to Catholicism or attend my funeral then the share given to them under this my Will shall be void and the value thereof divided between my remaining residuary beneficiaries in the same proportions as herein set out. 4The defendants (one of whom is the co-executrix Ms Klar) are the four persons named in sub-clause 3(xiv). 5The proceedings were heard by me three days ago on Monday, 11 November 2013. The parties who appeared before me all accepted that the condition in clause 3(xiv) of the will referring to baptism and conversion to Catholicism (the "Catholic condition") was not contrary to public policy. However they submitted it was void for uncertainty or because it was impossible. Notwithstanding the careful arguments of Mr P.P. O'Loughlin of Counsel for the plaintiffs and Mr M. Gorrick of Counsel who appeared with Ms J. Walker of Counsel for the defendants, at the end of the hearing I was left with the clear view that there were arguments which could properly be put in support of the validity of the Catholic condition. While so much was clear to me, I emphasise I do not have any view as to the ultimate outcome of the proceedings. 6Having come to that view it follows that the proceedings thus far have been irregular for want of a contradictor. I relisted the matter before me today to discuss with the parties how the position could be rectified. As a result of that discussion I made the orders set out in paragraph 35 below. These are the reasons for those orders. The parties and a contradictor 7To understand the constitution of these proceedings, it is necessary for me to say something about the other provisions in the will. After appointing his executrices, Mr Carroll gives a specific legacy of $5,000 to a named individual. Clause 3 commences "To apply the remainder as follows" and then lists in sub-clauses (i) to (xiii) individuals apparently related to him by blood or by marriage, each of whom is to receive a nominated percentage of the remainder (e.g. "To my step-grandson X - 5.27%"). Sub-clause 3(xiv) as reproduced in paragraph [3] above, then follows. 8Clause 4 of the will then provides: I DIRECT that if any of the said CAROLYN MARGARET HICKEN [who receives a specific percentage of the remainder], SEAN LYONS, PAULINE JUNE CARROLL, ANTHONY JOHN CARROLL or SUSAN MARGARET KLAH should predecease me then to vest the share under this my Will that they would otherwise have taken had they survived me in such of their children as shall survive me and attain the age of twenty-one years and if more than one as tenants in common in equal shares. 9I shall refer without disrespect to the persons named in sub-clauses 3(i) to (xiii) as the "Extended Family" and to Mr Carroll's children (all of whom are now adults) referred to in sub-clause 3(xiv) as the "Children". 10It was common ground that while each of the Children attended Mr Carroll's funeral, none of them had been baptised into the Catholic Church (or otherwise, if it be relevant, converted to Catholicism) within a period of three months from Mr Carroll's death. The Children are all Jehovah's Witnesses. Therefore, if the Catholic condition is valid and effective, the Childrens' share of the remainder will go to the Extended Family in their respective proportions. 11When these proceedings were commenced on 9 May 2013, the summons sought: 1. An order that upon the true construction of clause 3(xiv) (the Clause) of the will of the late Patrick Carroll (Deceased) made 15 December 2011 (Will) and in the events which have happened, the gifts to the defendants in the Clause is void by reason of the fact that none of the defendants became baptised into the Catholic Church within a period of 3 months from the date of the death of the Deceased on 16 April 2012. 2. A declaration that the gift in the Clause forms part of the residue of the estate of the Deceased to be divided between the Deceased's remaining beneficiaries in the same proportions as set out in paragraphs 3(i)-(xiii) of the Will. ... 12On 26 June 2013 the solicitor for the defendants wrote to the Roman Catholic Archdiocese of Sydney: We act for beneficiaries of a Will which provides that the children of the deceased only take on the following conditions: [sub-clause 3(xiv) is then set out] We are aware of the RCIA process. Can you give us some confirmation of the requirements of adult admission to the Church and whether you would assist persons in the position of our clients who at death were already firm adherents of another religion. 13The expert evidence tendered at the hearing explained that "the RCIA process" referred to procedures described in a document entitled "The Rite of Christian Initiation of Adults" which set out the procedures used by the Roman Catholic Church, generally taking many months, for an adult wanting to become a Roman Catholic. 14The Roman Catholic Archdiocese of Sydney responded on 2 July 2013: Thank you for your letter of 26 June in relation to the above estate. The Chancellor has authorised me to answer on his behalf, and I note that you are familiar with the RCIA process in regard to adults taking on the Catholic faith. This would require that any new adherents would not become Catholic until at least Easter of next year (2014), or possibly further into the future. In general terms, it is not possible to be precise about how long it may take for adults to become part of this faith, but there is no process available to assist or to expedite the passage of those who may wish to adopt Catholicism in the face of the requirements outlined in the Will with which your office is currently involved. I hope that this information is helpful. 15While the defendants' solicitor's inquiry is entirely understandable given the problem faced by her clients, and with absolutely no disrespect to her, as matters evolved at the hearing it became apparent that both the question that was asked and the answer that was given may not have been as germane to or conclusive of the issues in the proceedings as the parties thought. Nevertheless, the answer received did cause a change of tack on the part of the plaintiff (who presumably received a copy from the defendants), who filed the amended summons on 16 August 2013 seeking the declaration set out in paragraph [2] above. In other words, the plaintiff went from seeking to uphold the Catholic condition to arguing that it was invalid. 16Each of the Extended Family then received a letter from the solicitors for the plaintiff dated 22 August 2013 in identical terms: As you may know we act for Carolyn Hickin, one of the executors of the estate of the late Patrick Carroll. We enclose a copy of the grant of probate to which is attached a copy of the late Mr Carroll's will and inventory of his property. You are named as one of the residuary beneficiaries. As you may know none of Robyn Patricia Lyons, Pauline June Carroll, Anthony John Carroll and Susan Margaret Klah were baptised into the Catholic Church within a period of three months from the date of Mr Carroll's death. Nevertheless, the executor has seen advice from a Mr Bailey on behalf of the Chancellor of the Catholic Archdiocese of Sydney to the effect that the time limit imposed could not be complied with. A copy of Mr Bailey's letter of 2 July 2013 is enclosed. The executor has made an application to the Supreme Court of New South Wales seeking the following declaration: "A Declaration that the conditions attached to the gifts in clause 3(xiv) of the last will of the late Patrick Carroll made on 15 December 2011, are void and of no effect to the intent that the gifts in subclauses (a), (b), (c) and (d) of clause 3(xiv) of the will are absolute gifts." This application is to be heard on 11 November 2013. You are an affected person because if the condition of clause 3(xiv) is valid, the shares of Robyn Patricia Lyons, Pauline June Carroll, Anthony John Carroll and Susan Margaret Klah would have been shared amongst you. It is open to you to seek independent advice and if so advised to apply to the Court to become a party to the proceedings and argue that clause 3(xiv) is valid. If you decide to do this you should do so promptly. Otherwise, if the declaration is made the estate will be administered on the basis that clause 3(xiv) is of no effect. It may be that you consent to the declaration being made and if so we would be grateful if you would sign and date the copy of this letter which is enclosed. Yours faithfully ... I have read the original of this letter and consent to the declaration referred to therein being made. Dated: 2013 Signed by 17Each of the Extended Family returned the letter giving their consent (in the case of one of them, by their legal guardian) to the declaration sought in the amended summons. None of them took up the invitation to be represented in the proceedings and contend that sub-clause 3(xiv) was valid. 18At the hearing the plaintiffs and the defendants, for not entirely identical reasons, put submissions in support of the declaration being made. It will be apparent that the effect of the declaration sought in the amended summons, in circumstances where while they attended Mr Carroll's funeral none of the Children has (to put it imprecisely) become a Catholic, then the Children would nevertheless retain the gifts made to them in sub-clause 3 (xiv). 19With certain exceptions (none of them applicable here) the Court will not make declarations by consent. However, the practical effect of what has occurred is that everyone concerned in the estate consents to the declaration in the amended summons. 20In Tawil v Public Trustee of New South Wales (SCNSW; unreported; 1 July 1998), Hodgson CJ in Equity (as his Honour then was) said (at p.2): The relief sought is declaratory relief, and as a general rule such relief requires both a contradictor and utility. Utility is not the present issue. However, because of the way in which the proceedings have been conducted the Court has not had the benefit of a contradictor who would have put before the Court all available arguments for the validity of the Catholic condition. 21In general, a contradictor is necessary for at least three reasons, although I have identified a fourth in the circumstances of this case. 22First, our system of justice is based upon the adversary system, which assumes that justice is most likely to be done where the arguments for any proposition are advanced and opposed vigorously and independently by the party whose interest is for that proposition to succeed or not succeed, as the case may be. 23Second, insofar as the opposing positions are not advanced by adversaries from the Bar table, the Court is deprived of the benefit of the assistance of the parties in ensuring that all relevant arguments and authorities are canvassed. 24Third, to the extent the Court itself acts on arguments not advanced by any of the parties it risks being seen to have descended "into the arena" and prejudicing both the reality and appearance of impartiality which are fundamental to the administration of justice. 25A fourth reason for the presence of a contradictor in the circumstances of this case arises from it being proceedings concerning the construction of a will. The fundamental duty of the Court in such a case is to give effect to the testator's intentions properly construed. In the present circumstances, all parties were contending that on the face of the words used by Mr Carroll his intention could not be upheld. As the case was presented by the parties, there was no one to speak for Mr Carroll. With the benefit of hindsight, this was a case where the plaintiff as executor would have been justified in departing from the usual executor's position of neutrality in a construction suit and have put the arguments for the validity of sub-clause 3(xiv) so that the Court had a contradictor. This would have been entirely appropriate because it was obvious that the defendants had a real interest in advancing the contrary position, which they in fact did. 26In making these observations, I do not wish to be seen as criticising the parties or their representatives. The need for a contradictor really only became acutely apparent during the course of the hearing. This is because, as I have referred to above, the parties were proceeding on a particular view of the effect of the Roman Catholic Archdiocese of Sydney's letter of 2 July 2013. This led them to consider that it was impossible for a person to be "baptised into the Catholic Church" within three months. 27Two things happened in the course of the hearing that put matters in a different light. First, the expert called by the plaintiff in Roman Catholic Canon Law was not so dogmatic on the question of impossibility. So much could have been intuited from his reports, but this became particularly clear in his answers to questions from the Court. The plaintiff indicated that the expert was being made available because it was thought the Court might have some questions for him in circumstances where the parties did not. This demonstrates at least an instinctive recognition by the plaintiff that something was missing in the curial process in the absence of a contradictor. 28Second, the parties provided the Court without further comment with an article by Mr Peter Butt (as the learned professor then was) entitled "Testamentary Conditions in Restraint of Religion (1977) 8 Syd LR 400. This article (surprisingly not cited in any otherwise relevant decision on the topic since its publication) contains a compendious treatment of all the relevant cases and puts arguments which, if adopted by a court, could lead to the validity of the Catholic condition being upheld. Resolving the problem 29The hearing having concluded, I initially sought to resolve the difficulty of the absence of a contradictor in these proceedings in the following way. Mindful of the overriding purpose set out in s56 of the Civil Procedure Act 2005 (NSW) to facilitate the just, cheap and quick and resolution of the real issues in dispute in the proceedings, on the day following the conclusion of the hearing my associate sent the following email to the parties: Dear Parties Upon further reflection his Honour is concerned at the absence of a contradictor, namely a party actively contending for the validity of the condition in the relevant clause. His Honour notes, for example, that there is much in Professor Butt's article that would support the validity of the condition. While his Honour has formed no view on the outcome, it does appear that if he does not accept the parties' submissions the result will be the validity of the condition will be upheld. If his Honour comes to the view that there is a real possibility that may be the result, would any party wish to be heard further? 30In response to my associate's email, the plaintiff indicated that if the Court came to the view foreshadowed in the email, she would not wish to be heard further. However, the defendants responded by saying they might wish to be heard. 31Because of the matters referred to in paragraphs [26] to [27] above, I have come to the view that there are arguments which could reasonably be put in favour of the validity of sub-clause 3(xiv). However, given the position of the defendants, which they are entirely entitled to adopt, it is also clear that merely affording them the right to be heard will not solve the fundamental problem of the lack of a contradictor. Having come to the view that there are arguments which can be put, it is no part of the Court's role to advance them in the face of what I assume will be opposition from the defendants. 32It has become clear that the proceedings and last Monday's hearing were irregularly constituted for want of a contradictor. I see no reason in principle or practice why the Court, of its own motion, cannot act to correct that position prior to a judgment being delivered and orders made, especially in circumstances where the Court has formed no view as to the ultimate outcome of the proceedings. Power to do so must exist at least as part of the Court's inherent power to control its own processes. If UCPR Pt 36 r 36.15 allows a judgment to be reopened before it is entered, the Court must have power to do so before judgment is even given. Sections 56 to 58 of the Civil Procedure Act 2005 (NSW) also support the Court seeking to remedy the situation which has arisen. 33For these reasons the Court this morning of its own motion ordered the hearing to be re-opened to allow further argument. None of the parties before me suggested that the Court lacked power to proceed in this way or, assuming power, should not do so in the exercise of its discretion. 34The most natural source of a contradictor is the Extended Family because they are the ones who stand to benefit from sub-clause 3(xiv) being upheld. The orders which I made this morning (set out in paragraph [35] below) are intended to bring recent events to the attention of the Extended Family and invite them to reconsider their position of non-participation in the proceedings. As the Extended Family comprises 13 people, I would expect one of them to be appointed to represent them all. That person's legal costs of doing so would, absent unusual circumstances, be paid out of the estate. If none of them chooses to participate then the Court will invite the parties' submissions as to how a contradictor should be provided. 35The orders I made this morning were: (1)The hearing of these proceedings is re-opened for further argument. (2)On or before 18 November 2013 the plaintiff by her solicitors is to send a letter substantially in the terms of Schedule One to each of the persons named in sub-clauses 3(i) to (xiii) of the will of Patrick Carroll made on 15 December 2011 (the "Extended Family"). (3)The transcript of the hearing on 11 November 2013 be corrected as follows: (a)P 1, line 19: delete "Archdiocese Committee" and replace with "Commission of the Roman Catholic Archdiocese"; (b)P 1, line 21: delete the line and replaced with "liturgy. I am also an observant Roman Catholic. In my uninstructed view neither of those". (4)The transcript of proceedings on 11 November 2013 be provided on an urgent basis to any party who applies for it. (5)Stand the proceedings over for further directions before me on 20 December 2013 at 9.30am. Schedule One We refer to our letter of 22 August 2013. The executor's application for the declaration referred to in our letter came before Justice Kunc in the Supreme Court of New South Wales on 11 November 2013. This letter is sent to you in accordance with orders subsequently made by the Court. At the hearing on 11 November 2013 there was no party before the Court who argued that the condition in clause 3(xiv) of Mr Patrick Carroll's will was valid. At the end of the hearing, while the Court had not formed a view on the validity of the condition, it was satisfied that there were arguments which supported the validity of the condition. The Court has indicated that it will not make a final decision without a further hearing at which someone argues for the validity of the condition. Such a person is called a "contradictor". The Court has ordered us to write this letter to all persons such as yourself who stand to benefit from the condition being upheld because in that event the shares of the persons referred to in clause 3(xiv) would be shared among you. In the light of these developments you are invited to reconsider whether you wish to become a party to the proceedings to argue for the validity of the condition. To assist you in obtaining independent legal advice we enclose a copy of Justice Kunc's judgment (which includes the orders for the sending of this letter) and the law journal article referred to in that judgment. If you or your lawyers require copies of the evidence that was before the Court or the transcript of proceedings we shall provide that upon request. You may wish to discuss this matter with the other people in your position. We can tell you who they are if you do not know. The Court has suggested that one person would be appointed to represent all of your interests and that such a representative's legal costs would be met out of the estate. The matter will be back before the Court for directions on 20 December 2013. Please let us know by 19 December 2013 whether you wish to join in the proceedings. If you do, then ideally you should arrange for a lawyer to appear on your behalf before the Court on 20 December 2013. 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. Decision last updated: 14 November 2013