Citation: Fitter v Public Trustee & Ors [2007] NSWSC 1487
Court: Supreme Court of New South Wales, Equity Division
Date: 13 December 2007
Judge(s): Palmer J
Background
The plaintiff was found not guilty of murdering her mother by reason of mental illness in 2002. The Public Trustee subsequently commenced proceedings seeking declarations that the forfeiture rule under the Forfeiture Act 1995 (NSW) applied to the plaintiff, her father, and her brother, all of whom had been involved in the deceased's death. The plaintiff was named as a defendant in those proceedings.
The plaintiff initially instructed her solicitor to prepare a cross-claim seeking relief under the Forfeiture Act and leave to bring a family provision claim. Shortly before the November 2005 trial, however, she changed course and instructed her solicitor not to proceed. Her solicitor filed a submitting appearance on her behalf, limiting participation to all orders save as to costs. After the plaintiff's solicitor was excused from the hearing, Lloyd AJ made final orders applying the forfeiture rule to the plaintiff and directing the whole of the deceased's estate, including superannuation proceeds, to the deceased's sister as next of kin.
In July 2007, the plaintiff commenced fresh proceedings seeking to set aside those 2005 orders. She argued that the orders had been made "in her absence" within the meaning of UCPR rule 36.16(2)(b), and sought leave to pursue both a modification of the forfeiture rule and a family provision claim in relation to her mother's estate.
Legal Issues
- Whether a party who has filed a submitting appearance can rely on UCPR rule 36.16(2)(b) to set aside a judgment made in their "absence"
- Whether the 2005 orders were properly characterised as having been made in the plaintiff's absence when she was represented by a solicitor who filed a submitting appearance on her behalf
- Whether there was any vitiating factor, such as fraud or mistake, that could justify setting aside the submitting appearance itself
- Whether any consequential relief under the Forfeiture Act or the Family Provision Act could follow if the threshold challenge to the 2005 orders failed
Decision
Palmer J dismissed the application at the threshold. The central question was whether a party who deliberately files a submitting appearance can later invoke rule 36.16(2)(b) on the basis that the judgment was entered in their absence. His Honour held that a party who submits to orders is not "absent" in any relevant sense: the submitting appearance is itself a form of participation, representing an informed election to accept the court's determination without contesting it.
The plaintiff's evidence confirmed that she had received legal advice before instructing her solicitor to file the submitting appearance, and that she understood the likely consequence, namely that she would receive nothing from her mother's estate. The court found no evidence of fraud, misrepresentation, or other vitiating factor that might have undermined the validity of the submitting appearance. The act of filing the appearance was a deliberate, advised decision.
Because the submitting appearance was valid and unimpeachable, the plaintiff could not characterise the 2005 orders as having been made in her absence within rule 36.16(2)(b). The rule is directed at protecting parties who are genuinely absent without a meaningful opportunity to participate, not at allowing parties who have voluntarily chosen not to contest proceedings to revisit that choice. The plaintiff's failure to clear this threshold meant the court did not need to consider her claims under the Forfeiture Act or the Family Provision Act.
On costs, Palmer J declined to award indemnity costs against the plaintiff, accepting that the proceedings were not so plainly hopeless as to warrant that outcome. The court also declined to order that the plaintiff's costs be paid from the deceased's estate, distinguishing this case from the typical unsuccessful family provision claim on the basis that the plaintiff's case collapsed at the forfeiture threshold rather than on the merits of a provision application.
Orders Made
- The plaintiff's Amended Summons was dismissed.
- The plaintiff was ordered to pay the defendants' costs of the proceedings on a party/party basis.
- The First Defendant (Public Trustee) was granted its costs otherwise out of the deceased's estate on an indemnity basis.
- Liberty to all parties to apply on three days' notice.
- The Fourth Defendant was directed to notify the plaintiff's solicitor in writing by 20 December 2007 if she intended to apply for a personal costs order against the solicitor.
Key Takeaways
- A party who files a submitting appearance is not "absent" for the purposes of UCPR rule 36.16(2)(b): the submitting appearance is an active procedural step, not a failure to appear.
- Rule 36.16(2)(b) will not avail a party who voluntarily and advisedly submitted to orders unless the submitting appearance itself was procured by fraud or some other recognised vitiating factor.
- Where no vitiating factor exists, a deliberate decision to file a submitting appearance, made on legal advice and with knowledge of likely consequences, will be treated as a binding election that forecloses any later challenge to the orders made.
- The costs of an unsuccessful plaintiff in proceedings touching the Family Provision Act will not automatically be ordered out of the deceased's estate where the claim failed entirely at a threshold stage unrelated to the provision application itself.
- The court left open the possibility of a personal costs application against the plaintiff's solicitor, directing the Fourth Defendant to notify the solicitor by a fixed date if such an application was intended.
Legislation and Cases Referenced
Legislation
- Forfeiture Act 1995 (NSW), s 5, s 7, s 11
- Uniform Civil Procedure Rules 2005 (NSW), rr 6.11, 28.2, 36.16(2)(b)
- Family Provision Act 1982 (NSW), s 7
Cases
- BP Australia Limited v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322
- Cameron v Cole (1944) 68 CLR 571
- Trust Company of Australia Limited v Perpetual Trustees (WA) Limited (No 2) (1995) 36 NSWLR 654