Wednesday, March 26, 2014
Friday, March 21, 2014
This is a defamation action by which the plaintiff alleges that he was defamed by the defendant. At the time of the publications relied on by the plaintiff the defendant was a Member of the House of Assembly of the South Australian Parliament. She was also the Minister for Families and Communities; for Housing; for Ageing; and for Disability.
The publications relied on by the plaintiff occurred in October and November 2008.
The first occurred in the South Australian Parliament on 30 October 2008. On that day the defendant answered a question put to her by another member of the Parliament. Obviously, that publication was made inside Parliament.
The other two publications are said to have occurred on 12 and 14 November 2008. Those two publications were made outside of Parliament.
All three publications are referred to in the plaintiff’s Second Statement of Claim.
The plaintiff commenced his proceedings in this matter on 17 March 2011. His Second Statement of Claim was filed on 1 November 2011.
In March 2012 the defendant sought from the court, amongst other orders, an order that the court permanently stay the plaintiff’s action. A learned Master of this court decided that application on 7 September 2012. He refused the defendant’s application for a permanent stay. His reasons for doing so were fully and carefully expressed. He set out the background to this action, the contentions of both parties on the application for a stay, the authorities relevant to the issues he had to decide, his findings and his conclusions. The Master’s views of the two emails upon which the plaintiff sought damages against the defendant (the publications made outside of Parliament) were expressed in this way:
In my view, this can be read as the defendant “justifying” or “standing by” the allegations she made (in Parliament). The defendant appears to suggest that there are documents to justify, if not to prove, the allegation she made.
This is an expansion upon and justification of what was said there.
There is a clear temporal and substantive connection between the October statement and the emails.
On the authorities, it seems to me that the emails are an effective repetition or adoption of the October statement, and hence of the imputations conveyed by the October statement.
The plaintiff’s case as pleaded relies on these extra parliamentary statements or publications, and does not necessitate reliance on the October statement which he concedes is protected by absolute privilege.
If I am wrong in coming to this conclusion, the issue should in any event go to the trial judge for consideration . . . as the plaintiff’s contention is clearly arguable.
The Master’s decision and mine require consideration of the privileges of Parliament, the judicial approach taken to extra-parliamentary publications, and the powers of a court to stay proceedings which intrude upon parliamentary privilege.
I have come to different conclusions to those reached by the learned Master. My conclusions are as follows.
First, I am satisfied and find that as a matter of law and fact the defendant could not be said to have adopted, repeated, confirmed as true and republished by reference the statement she made in Parliament in causing the two emails to be sent on 12 and 14 November 2008 in a context which was not protected by privilege.
Secondly, it is, in my view, inconceivable that a trial on the current pleadings in this action could be conducted without both parties being in breach of the privileges of the Parliament of South Australia.
Thirdly, it is my view that the plaintiff has squarely put the truth or otherwise of any defamatory imputations in what the defendant said in Parliament in issue in the trial of this action.
And fourthly, I am satisfied that fairness and justice to neither party can be accorded in a trial where the issues are as they are joined between them.
Whilst some of the above conclusions might overlap with each other and whilst I acknowledge that the first might more appropriately be cause to dismiss the plaintiff’s action, each of them, either separately or in conjunction with each other, well justifies an order that the action be permanently stayed.
As to the issues raised by the pleadings it is agreed that on 30 October 2008, in answer to a question put to her in Parliament by another member of Parliament, the defendant said the following words referring to the plaintiff:
I have to say that in certain circumstances each and every one of us would question whether our children would have been safe in Mr Easling’s care.
We had people going into that house and finding semi-naked boys in his bed.
If you want me to go into detail, I can. It is very unsavoury.
The plaintiff says those words were “the October Statement”, although the defendant says those words were only part of what the defendant said on 30 October 2008 in Parliament in answer to a question regarding when the Special Investigations Unit investigated the plaintiff (Exhibit “DPL1”, Affidavit of Daniel Peter Lorbeer).
It is agreed that the October Statement, or a substantial part of it, was republished extensively through South Australia by the electronic and print media.
It is agreed that on 12 November 2008 an email was sent by Matt Clemow to Hendrik Gout in the following terms:
On October 30th the Member for Davenport raised issues in the Parliament in relation to an investigation undertaken by the Special Investigations Unit of Dept Families and Communities.
In response to the Member for Davenport I again highlighted to the Parliament that the SIU’s responsibility is to investigate serious allegations where a child in the care of the State is put at risk.
The documentation provided by the SIU, since this matter has been raised by the Member for Davenport, includes the many serious allegations that led to Mr Easling’s deregistration as a foster carer.
The plaintiff refers to this email as “the November Email”. The plaintiff says this email was sent to Mr Gout, a reporter then employed by The Independent Weekly, by a member of the defendant’s staff on her direction. Although this is denied by the defendant, the matter was argued before the Master and me on the basis that it was a publication by the defendant.
It is agreed that on 14 November 2008 the same person who sent the November Email to Mr Gout sent the same email to the email address of David Bevan. The plaintiff refers to this email as “the ABC Email”.
There are some issues joined between the parties as to whether or not the defendant knew or ought to have known that the November Email would be republished by The Independent Weekly in the context of a report or commentary upon the making of the October Statement, and whether or not, in causing the ABC Email to be sent, the defendant knew or ought to have known that the content of the ABC Email would be republished by ABC Radio in the context of a report or commentary upon the making of the October Statement. These issues, however, do not have to be resolved for the purpose of determining this appeal.
Although the plaintiff does not say that he has suffered loss and damage as a consequence of the October Statement made by the defendant in Parliament (refer to SofC, para 13), he does say that the October Statement, the November Email and the ABC Email were defamatory of him, were unjustified and were untrue (SofC, para 10).
Further, the plaintiff says that the October Statement carried certain imputations (SofC, para 9). They were said to be:
9.1 That on occasions Officers of the Department of Families and Communities (“Departmental Officers”) had attended at the Plaintiff’s residence and had seen semi‑naked boys in the Plaintiff’s bed;
9.2 That the Defendant was in possession of detailed evidence of inappropriate conduct by the Plaintiff towards children at his residence;
9.3 That the Plaintiff had engaged in acts of a sexual nature with children in his care;
9.4 That the Plaintiff had engaged in acts with children in his care that an ordinary person would consider to be improper;
9.5 That, by the conduct observed by Departmental Officers, the Plaintiff poses a risk of harm to children;
9.6 That the Plaintiff is a paedophile;
9.7 That the Plaintiff preyed upon and exploited children in his care;
9.8 That the Plaintiff took advantage of the vulnerability and naivety of children in his care;
9.9 That the Plaintiff was guilty of sexually assaulting children notwithstanding the verdict of acquittal on all charges the subject of an earlier prosecution;
9.10 That evidence exists which supports each of the imputations pleaded herein.
The defendant says that the plaintiff is not entitled to rely on the October Statement made by the defendant in Parliament, or any imputations said to arise from it, because “such a pleading is in breach of the privilege of the Parliament of South Australia and the plaintiff is thereby disentitled from relying on the matters so pleaded” (D, para 20).
Whilst the plaintiff does not allege that he has suffered loss and damage as a consequence of the publication by the defendant of what she said in Parliament (the October Statement) he does say that by causing the November Email and the ABC Email to be sent she “adopted, repeated, confirmed as true and republished by reference the October Statement in a context which was not protected by privilege” (SofC, para 8). This is denied by the defendant. She says that by neither the November Email nor the ABC Email were any of these things done.
Further, the defendant submits that the plaintiff has put in issue the truth or otherwise of what the defendant said in Parliament on 30 October 2008, and that a trial cannot fairly be conducted on that issue, where both parties are precluded, in particular by s 16(3) of the Parliamentary Privileges Act 1987(Cth), from lawfully questioning that issue.
Section 16 of the Parliamentary Privileges Act provides:
(1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.
(2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, “proceedings in Parliament” means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:
(a) the giving of evidence before a House or a committee, and evidence so given;
(b) the presentation or submission of a document to a House or a committee;
(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of;
(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
I have set out s 16 here because I consider it relevant to each of my conclusions on this appeal. I consider that the breadth of absolute privilege accorded to parliamentary proceedings in this country is relevant and important. It also provides colour to the issues for decision.
I do this notwithstanding that perhaps logically the first question is whether by the publication of the November Email and the ABC Email outside of Parliament the defendant “adopted, repeated, confirmed as true and republished by reference to the October Statement in a context which was not protected by privilege”. This is so because the plaintiff says that he does not seek damages from the defendant as a consequence of the publication by her of what she said in Parliament, nor any republication of her words in Parliament by the South Australian electronic and print media. He says that he is entitled to damages against her on the basis that by the two email publications made outside Parliament (“the emails”) she “adopted, repeated, confirmed as true and republished” the defamatory statement and imputations she made in Parliament, where they are not protected by parliamentary privilege.
As to that assertion I am convinced that the submissions advanced on behalf of the defendant are compelling and correct.
In considering this question I regard it as important to differentiate between the words the plaintiff has defined as being “the October Statement” on the one hand, and all of what the defendant said in Parliament in answer to a question on 30 October 2008 on the other. Another Member of Parliament had raised in the Parliament an investigation undertaken by the Special Investigations Unit of the Department of Families and Communities, of which the defendant was then the Minister. The question was whether, when that unit investigated the plaintiff, it did so within its powers and in accordance with a certain philosophy and practice guidelines. It appears to me that these were the topics or issues raised with and the question asked of the defendant in Parliament, and to which she responded. What she said in response was not confined solely to the three sentences defined by the plaintiff as the October Statement.
The first paragraph of the emails states the subject matter of the issues raised by another member in a question to the defendant. It refers to an investigation undertaken by the Special Investigations Unit of the defendant’s Department. It states what the questioner in Parliament stated to be the subject matter of the issues raised. Although the questioner mentioned the plaintiff’s name in the context of an investigation by the Special Investigations Unit the first paragraph of the emails does not. It refers only to words spoken by the other member of Parliament in a question directed to the defendant.
The second paragraph of the emails is a statement that the defendant had highlighted to the Parliament that the Special Investigations Unit’s responsibility is to investigate serious allegations where a child in the care of the State is put at risk. This paragraph states, albeit in slightly different words, what the defendant first said in answer to the question asked of her in Parliament. This paragraph says nothing about any words uttered by the defendant about the plaintiff. Although there may be some “link” between “children in Mr Easling’s care” in what the plaintiff has said is the October Statement and “a child in the care of the State” in the second paragraph of the emails, this second paragraph of the emails does no more than state what the defendant said in Parliament as to the responsibility of the Special Investigations Unit.
The third paragraph of the emails asserts that documentation provided by the Special Investigation Unit includes the many serious allegations that led to Mr Easling’s deregistration as a foster carer. In my view that does no more than describe what was in the documentation provided by the Special Investigation Unit as including allegations that led to Mr Easling’s deregistration as a foster carer.
A consideration of the Master’s reasons for decision, the submissions before me, and the authorities cited before me by both parties discloses that a number of words, and a combination of words, have been used when consideration has been given to when, and in what circumstances, publications made outside of Parliament that “refer” or “relate” to something said in Parliament loses the protection of absolute parliamentary privilege. They include: “a reference to, a comment upon, or an elaboration upon” an earlier privileged publication; “the repetition or adoption of” a privileged publication; a defendant “justifying or standing by” the allegations in a privileged publication; a privileged publication being “repeated, expanded upon and sought to be justified” later; a defendant “adopting and publishing the words said” in a privileged publication; a defendant “adopting, repeating and confirming as being true” a statement made in a privileged publication; and a defendant “effectively repeating” a privileged publication.
The plaintiff here says that the defendant, by causing the emails to be sent “adopted, repeated, confirmed as true and republished by reference the October Statement” and that she did that in a context not protected by parliamentary privilege.
The learned Master was of the view that the emails could be read as the defendant “justifying” or “standing by” what she said in Parliament, and further that she “appears to suggest that there are documents to justify, if not to prove, the allegation she made”. He concluded that the emails were “an expansion upon and justification of what” she said in Parliament. It seemed to him that the emails were “an effective repetition or adoption of the October Statement”. Whilst the Master obviously drew some of these words from the authorities which he carefully examined they are not all relied upon by the plaintiff in this case. For example, “expansion upon and justification of” does not seem to be relied on by the plaintiff here, although he does allege that the emails “confirmed as true” what was said in Parliament.
Some of the other authorities referred to by the Master and in argument before me have considered publications made outside of Parliament that “refer” or “ relate” to something said in Parliament where someone is asked outside Parliament about what he or she said in Parliament. In some cases a person has said words to the effect “What I said in Parliament was what I said”; or “I said what I said”; or “I do not propose to say anything further than what I said in Parliament”; or “I don’t resile from what I said in Parliament”.
There may often be differences of views as to whether a statement or statements made outside of Parliament that “refer” or “relate” to something that was said in Parliament is properly to be characterized as falling within a description of being “adopted, repeated, confirmed as true and republished by reference” to a statement in Parliament on the one hand, or as a statement to the effect “What I said in Parliament was what I said in Parliament” on the other. I have come to a different view and different conclusions to those reached by the learned Master. My views and conclusions have been influenced significantly by the importance in our society of the principle underlying the absolute privilege accorded to statements made in our Parliament, and by what I consider to be the quite high and binding test in South Australia which imposes a fairly strict embargo on any form of reliance on a parliamentary statement as a foundation for an action in defamation against a Parliamentarian. Such an embargo is, in my view, concomitant to the importance of the principle.
I consider that Australian Broadcasting Corp v Chatterton (1986) 46 SASR 1 requires that there must be clearly established a strong link between something said in Parliament and something said outside it before a Parliamentarian can be made liable in defamation on the subject matter of something he or she said in Parliament. I consider that this authority requires there to be found the actual repetition or adoption in substance of what was said in Parliament in a statement made outside it, before the latter is actionable in defamation.
The defendant’s words that the plaintiff says constitute the October Statement are that “each and every one of us would question whether our children would have been safe in (the plaintiff’s) care – people (were) going into that house and finding semi-naked boys in his bed – (the) detail … is very unsavoury”. When I compare those words with the words in the emails I cannot conclude that the emails actually repeat or adopt in substance the defendant’s words in the October Statement. In my view the emails make no reference to what the defendant said in the October Statement in Parliament about the plaintiff, let alone actually repeating what she said or adopting in substance what she said.
What the defendant said in the October Statement in Parliament about the plaintiff forms the base of his claim against her in damages, the words are said to carry imputations defamatory of him, and they are said to be unjustified and untrue.
My conclusion is that they were not, at law or in fact, published by the defendant in the emails and are therefore not actionable.
This conclusion is enough to dispose of the appeal. If the basis upon which the plaintiff seeks damages against the defendant in defamation, being defamatory publications and imputations not protected by Parliamentary privilege which I find were not made, then the plaintiff’s claim must fail and be dismissed, or be permanently stayed. The relief the defendant seeks here is a permanent stay. I would grant such a stay on the conclusions and findings I make.
Even if I was convinced that the plaintiff had an arguable case as to the pleading upon which he relies in paragraph 8 of his Second Statement of Claim, I would not allow the case to go to trial to have that matter determined by the trial judge.
My view of the case is that it is inconceivable that a trial could properly and fairly be conducted without both parties being in breach of the privileges of the Parliament of South Australia. The truth or otherwise of what the defendant said in Parliament and whether her words carried the defamatory imputations pleaded, would, in my view, inevitably be an issue in any trial. I consider that it would be impossible to conduct a trial where s 16(3) of the Parliamentary Privileges Act would not be breached in some way or another, probably by both parties.
The truth of what the defendant said in Parliament would inevitably be questioned, as would her intention and her good faith in saying the words of the October Statement. The drawing of inferences or conclusions, wholly or partly, from what the defendant said in Parliament would, in my view, be inevitable. The words of the October Statement and the imputations they are alleged to carry are in issue on the pleadings and would be issues between the parties in any trial. The plaintiff intends, by his pleadings, to prove the falsity of the statements made by the defendant in Parliament, or at least to put in issue the inability of the plaintiff to prove or justify them. He also intends to question her motive in saying what she said of him in Parliament “notwithstanding the verdict of acquittal on all charges the subject of an earlier prosecution” against him.
My view is that it can not be said in this case that all the plaintiff intends to do at trial is to prove what the defendant said in Parliament “as a matter of history” (cf Della Bosca v Arena  NSWSC 1057 ).
It is my conclusion that I should order that the plaintiff’s action against the defendant be permanently stayed.
Thursday, March 06, 2014
I dunno about you, but I love reading about people who are given all the chances in life, live richly and successfully and yet want more, all without lifting a finger. Entitlement is a grand thing indeed, and this guy takes the cake. Not only does he want it all, he wants to ensure he gets it all solely by taking his mother to court and contesting the will of her father, his grandfather.
From the first case. "Robert, the plaintiff, made clear in his evidence that the plaintiffs not only claimed everything from the testor's estate, but had given virtually no consideration to what should happen to their mother.
Q: Your case as pleaded is that you and your brother should inherit your grandfather's entire estate, is that correct?
Q: And your mother should get what?
A: Whatever she likes. Pension. Trust."
Lovely kids those.
You can almost see the judge sitting there and holding back from calling this guy some choice names. Perhaps he should have, but, alas, he has to refrain. Remember, kiddies, it's people like this that are running the country, and it's cases like this that ensure the legal system is bogged down into the quagmire for years to come.
New South Wales
Wilcox v Wilcox (No 2)  NSWSC 88
10, 11, 12 & 13 February 2014
This is a sorry case brought by two adult grandsons seeking orders that provision be made for them out of their grandfather's estate. The claim of the second plaintiff was settled and requires no adjudication or comment. The claim of the first plaintiff, Robert Wilcox, a 46 year old single man, remains to be resolved. His claim has limited merit but I have reached the conclusion that it is appropriate to make some order.
The defendant is the executrix and primary beneficiary of her father's will. She is the mother of Robert Wilcox who is her eldest son. The will is dated 21 August 2002. The testator died on 17 January 2010. Probate of the will was granted on 17 October 2011. The inventory of property forming part of the grant of probate, lists assets consisting of real estate, shares in companies and monies on deposit having an estimated or known value of $5,518,176.
I said enough in my first judgment  NSWSC 1138 to make clear that a substantial basis of Robert Wilcox's claim seems to have been a highly developed and unhealthy sense of entitlement. By his will, his grandfather, the testator, left his direct and indirect interests in a number of pastoral properties at Walgett to the defendant, his daughter. This was reasonable and natural. I have no doubt that the testator anticipated that his daughter would, in all probability, eventually pass on the properties, or a substantial portion of them, to her sons. However, he was content to leave that question ultimately for his daughter's judgment. Unfortunately, instead of waiting for events to run their natural course, the sons sued their mother as executrix of their grandfather's estate, resulting in unquantifiable family discord, substantial cost and considerable hardship.
This was the context in which I concluded in my first judgment that, even though he was a mere grandson, Robert Wilcox was an eligible person who may apply to the court for a family provision order out of the estate of the deceased within the meaning of Section 57(1)(e) of the Succession Act 2006 (NSW). The purpose of this second hearing was to establish what precise order, if any, should be made.
I explained the necessity for this further hearing in my first judgment as follows: ... there was an assumption in the plaintiffs' case that only the transfer to them of some or all of their grandfather's agricultural properties would do. They did not, and would not, consider a monetary award which might enable them to provide for their future and to purchase a home in Sydney or elsewhere. This must be part of any consideration of what is adequate and proper. I do not rule it out. And I have misgivings about the ability of the plaintiffs, by themselves, to make a success of a grazing enterprise.
But on any view, it is not possible for me to make an informed decision in accordance with the statutory criteria and the exposition of principle explained by the High Court of Australia in Vigolo v Bostin and Singer v Berghouse  HCA 40; (1994) 181 CLR 201, without adequate financial information. Counsel for the defendant is in the same unfortunate position as I am. ...... I have been left in the position of having no means of knowing, and no opportunity of assessing, whether the transfer to the plaintiffs of the three properties of their choice, will achieve the statutory objective, let alone be practical. A wise and just testator would expect nothing less. After all, there is no point setting up the plaintiffs in an agricultural enterprise that is doomed to fail.
Court Appointed Expert
To facilitate the determination of the question of relief, to limit the costs and to attempt to ensure the just, quick and cheap resolution of the proceedings, I appointed a court expert pursuant to Rule 31.46 of the Uniform Civil Procedure Rules 2005 (NSW). All parties concurred in this decision. And I was informed that the plaintiffs not only approved the identity of the proposed expert but encouraged it. In the result, Mr Graham Peart produced a report to the court dated October 2013. When the report was received, the plaintiffs sought and obtained an adjournment of the further hearing.
They did not like Mr Peart's conclusions. However, despite being invited to do so, they did not seek clarification of the report, raise any questions or request a supplementary report.
The instructions to Mr Peart were relevantly as follows: The court is considering whether the pastoral holdings currently owned, controlled and operated directly and indirectly by Mrs Patricia Anne Wilcox (the mother) should be divided between the mother and her two sons (Benjamin Wilcox and Robert Wilcox).
Assuming there were to be such a division, please express your opinion as to whether any particular division of those holdings would be economically feasible and workable, bearing in mind:
(a) the production capacity, income potential or other features of each of the respective holdings;
(b) the objective of ensuring that any such divided holdings be independently viable;
(c) the desirability of attempting to ensure that the mother's quality of life is not diminished.
I have referred elsewhere to the difficulties that sometimes result from competing experts' reports. In AMP Capital Investors Limited v Parsons Brinckerhoff Australia Pty Ltd  NSWSC 1633 at , I said: A tangle of competing experts engaged on behalf of individual parties in orchestrated adversarial combat is frequently an unsatisfactory means of assisting the court to arrive at an appropriate outcome. There is often a better way.
In Abbey National Mortgages Plc v Key Surveyors Nationwide Ltd  EWCA0 Civ J02051;
 1 WLR 1534 the Master of the Rolls, Sir Thomas Bingham, explained that For whatever reasons, and whether consciously or unconsciously, the fact is that expert witnesses instructed on behalf of parties to litigation often tend, if called as witnesses at all, to espouse the cause of those instructing them to a greater or lesser extent, on occasion becoming more partisan than the parties. There must be at least a reasonable chance that an expert appointed by the court, with no axe to grind but a clear obligation to make a careful and objective valuation, may prove a reliable source of expert opinion.
And in Newark Pty Ltd v Civil & Civic Pty Ltd (1987) 75 ALR 350, Pincus J said at 351: Experience suggests that too often expert witnesses display a degree of partiality, whereas the court appointed expert may be expected to be indifferent as to the result of the case.
My own view is that the opportunity to have a court appointed expert pursuant to Rule 31.46 is a valuable but underutilised part of the armoury of the court. Nothing adds to the time and expense of litigation quite as much as that which occurs when individual experts, separately retained and paid for by each of the parties, take up court time by their own adversarial jousting. Not only is the process time consuming, but the expense of reports prepared by experts in the fields of accounting, engineering, valuation, town planning and many other areas where courts require sometimes technical assistance, is disturbing.
A further problem is an occasional lack of objectivity. Despite professing to have read and understood the Expert Witness Code of Conduct, it sometimes seems difficult for an individual party's expert to appreciate that his or her role is to assist the court, not to advocate the case of the party who is paying his or her fees. The difficulty is compounded because experts retained by individual parties frequently become steeped in their client's case. They spend time in conference with the client or its solicitors and counsel; they address questions shaped by them; they submit drafts for their consideration, review and editing; and consciously or subconsciously, they are inclined to absorb the prejudices, preconceptions and loyalties of the client.
Another obvious problem is that a multiplicity of individual expert reports, which are not controlled by the court, and which suffer from some of the defects that I have mentioned, results in the process of dispute resolution becoming more complicated and cumbersome that it needs to be all the while taking up court time that could be made available to other litigants and generating substantial fees for the experts and lawyers. I do not think this is in the interests of justice. It is true that not every case will be appropriate necessarily for the appointment by the court of its own expert, but in my view the majority probably is. And where it is necessary to do so, there are means available to protect the interests of the parties. In this case, for example, the parties were united in approving the identity of the court appointed expert; they were given the opportunity before the hearing to seek clarification of the report, raise questions or request a supplementary report; and they were able to cross-examine the expert. I even asked them to agree on instructions to the expert which they were unable to do. In a rare case, a party might be given leave to call its own expert if the circumstances justify it and the application is timely.
I am satisfied in this case, that the court appointed expert, Mr Peart, is a reliable source of independent expert opinion.
He is, in my view, experienced, knowledgeable and impartial. I am grateful for his assistance. His conclusion, which I accept, is that division of the aggregated holdings on which the pastoral business is conducted, in order to provide for the transfer of part of the land to the plaintiffs or either of them, was not economically feasible. In the particular circumstances of this case, no division of the holdings would permit either the defendant or her sons to have a viable agricultural unit.
No doubt partly because of the evidence of Mr Peart, counsel for the first plaintiff stated at the commencement of his address that he did not propose to advance submissions in support of the transfer to the first plaintiff of some or all of the land. He confined his submissions at the conclusion of the hearing to the following two claims: 6. In the further alternative to orders 2 5, the [first] plaintiff is to be paid a lump sum and/or instalments of $1,100,000 within 24 months of the date of this judgment (or such other time as the Court considers appropriate).
In the further alternative to orders 2 6, the [first] plaintiff is to be paid a sum of $40,000 annually from the estate of the deceased, with the annual date for payment being the date 28 days after judgment (or such other time as the Court considers appropriate).
I do not therefore propose to undertake any detailed analysis of whether it is feasible, contrary to Mr Peart's opinion, to divide the aggregate holdings in some way so as to create separate viable agricultural units. Nor do I need to consider counsel's criticisms of Mr Peart in relation to this central conclusion. The issue of division of the land into economically feasible parcels no longer arises. And in any event, although it did not seem to be fully appreciated, it is complicated by the fact that, as I explain in paragraph  below, the estate does not itself own each parcel of land. For practical purposes, the only question of reduction in the land holdings of the estate that arises is that which follows indirectly from proposed Order 6, if I were disposed to make it. It was acknowledged that in order for the estate to make a payment of $1.1 million, part of the land under its control would need to be sold.
For the reasons that follow, I have concluded that the payment of a capital sum of $1.1 million would be too generous and is greater than is necessary to ensure adequate provision for the first plaintiff's proper maintenance or advancement in life having regard to the unique circumstances of the case, the position of the defendant and after giving due weight to the intention of the testator expressed in his will. On the other hand, the payment of $40,000 per annum, is with some qualifications, more appropriate. I will make an order to that effect. I will also make a further order which I explain in paragraph  below.
There is sometimes a misconception by claimants in family provision cases that the court's role is to achieve 'an overall fair' disposition of the deceased's estate. This is wrong and muddled: Gorton v Parks (1989) 17 NSWLR 1 at 6.
As Hallen J said in Nicholas v Nicholas  NSWSC 697 at : It is not part of the court's function to achieve some kind of equity between the various claimants. The court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the court's role is of a specific type and goes no further than the making of 'adequate' provision in all the circumstances for the 'proper' maintenance, education and advancement in life of an applicant.
And in Cooper v Dungan (1976) 50 ALJR 539 at 542, Stephen J stated that the court should be vigilant in guarding 'against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate'. The position applies à fortiori to grandchildren who only have an entitlement to bring a claim in the limited circumstances specified in Section 57(1)(e) of the Act.
It is true that the assessment of what is adequate 'involves a broad evaluative judgment which is not to be constrained by preconceptions and predispositions': Slack v Rogan  NSWSC 522 at . But as I sought to emphasise in my first judgment at : The court does not simply ride roughshod over the testator's intentions. I have no mandate to rewrite the will with a broad brush. The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection. They imply no more than is necessary. I should ensure that 'adequate provision', rather than generous provision, is made, having regard to the burden on the defendant.
In this case, I have already held that the first plaintiff was an unimpressive witness. He gave further evidence at this hearing that only reinforced my reservations. In particular, he had a wholly unrealistic belief in his ability to own and operate an agricultural property. And he could not shake his deeply ingrained sense that he was destined to take over some or all of his grandfather's grazing enterprise.
Robert Wilcox's ultimate inheritance of some of the grazing properties may or may not come to pass in the fullness of time. There was some evidence at the first hearing that the defendant's response to the commencement of proceedings against her was to vary her will to exclude her two sons. I was informed that her intention has now changed in the case of the second plaintiff. I do not exclude the possibility that it will, in due course, also change in the case of the first plaintiff. If the defendant does not make adequate provision in her will for the first plaintiff, her estate may face a stronger claim for a family provision order pursuant to the Succession Act than her father's estate has faced in this case.
But to return to the present. A key aspect of this case is that the testator was, in my view, quite reasonably entitled to take the view that his daughter should receive the entirety of his estate in the first instance and that any further disposition of that property should be left to her judgment. After all, she is a part owner of some of the properties, a shareholder in some of the companies, and an equal partner in the pastoral business. Despite the grandfather's expectation that his grandsons would one day take over the grazing enterprise, things change, life moves on and nothing remains static. The second plaintiff, for example, now has a disability that makes it impractical for him to conduct any grazing operation. One might well think that the best person to judge what is in the best interests of the grandsons, at the appropriate time, is their mother.
Mrs Wilcox & Wangrawally Pastoral Company
I repeat, for Robert Wilcox's benefit, that the evaluative process that the court undertakes is not a simple comparison of the defendant's net wealth with that of the claimant. The exercise of determining whether a family provision order should be made is a far more limited one; one that is constrained by the statutory criteria set out in Sections 5760 of the Act and the principles established by the courts in relation to those provisions. I have endeavoured to summarise the appropriate approach in paragraph above.
The difficulties facing the defendant are an important feature of the evidence and I have taken account of them. The defendant and her father were equal partners in the business known as the Wangrawally Pastoral Company. The business runs sheep and cattle on land consisting of eight parcels. Several of the parcels are adjoining. The four major parcels are on either side of the Walgett Carinda Road. The testator owned the parcels known as 'Newmans', 'Allawa' and 'Uno'. The parcels known as 'Wangrawally' and 'Taylors' are owned by Gidgerygah Pty Ltd. The parcel known as 'Barwon Vale' is owned by the defendant and Sanderson Estates Pty Ltd. The parcel known as 'Punches Plains' is owned by the testator and Gidgerygah Pty Ltd. And the parcel known as 'Gidgerygah' is owned by I F Sanderson Pty Ltd.
The testator owned the shares in Gidgerygah Pty Ltd; some but not all of the shares in I.F Sanderson Pty Ltd; and some but not all of the shares in the Sanderson Estates Pty Ltd. The shares in those companies not owned by the testator are owned by the defendant. Robert Wilcox seemed to think that all eight parcels of land were 'in play' and were available for distribution to him. His counsel pointed frequently to the evidence of the aggregate value of the properties being $15.2 million. This is not really the point and the valuation figure is misleading. I am, of course, only authorised to make an 'order for provision out of the estate of the deceased person': Section 59(2). I referred in paragraph  to the inventory of property belonging to the estate.
In any event, the court appointed expert, Mr Peart, expressed reservations about the assumed carrying capacity on which the valuations were based, particularly having regard to the drought conditions which have prevailed during the last eighteen months and especially since the date on which the valuations were undertaken. If Mr Peart's pragmatic reservations are taken into account, then the aggregate value of all of the properties, for what its worth, is much less than $15.2 million. He was, as I have said, impartial.
The security and cash position of the partnership business is as follows. The properties are all heavily mortgaged and cross collateralized.
The mortgages secure a total business debt of $2.565 million with an annual interest cost, until the next rate rise, of almost $200,000. Stock numbers have been reduced progressively as the drought has encroached and feed has diminished. In his October report, Mr Peart predicted a profit after expenses of $106,688 for the year ended 30 June 2014 and $65,691 for the year ended 30 June 2015. He revised these figures when he gave evidence at the hearing because of the continuing drought and the inevitable consequential reduction in the cattle herd.
He said '... when I was there on the property in October, the cattle herd had already been cut in half because of the drought, and the drought has only got considerably worse since then'.
Mr Peart explained that the reduction in cattle numbers will result in reduced income and reduced profit, if any. In fact, Mr Peart's revised predictions were that for the years ended 30 June 2014 and 2015, the pastoral business would more likely suffer losses of approximately $39,000 and $475,000 respectively. In addition to his budget predictions for the years ended June 2014 and 2015, Mr Peart also carried out a ten year historical review of the profit and loss reports of the business. Based on that review, and his own knowledge, he expressed the following conclusions: The ten year review of Profit & Loss reports on the business show that this is a high risk business. Cash reserves or borrowing capacity by mortgage and loans must be available to cover long periods of losss, ie six years in a row 2004 2009.
There are some other matters that I should mention. Mr Peart's inspection showed 'a rundown farm where little money had been spent on repairs and maintenance in the past. Houses and sheds are in poor condition and many have been damaged by flood water'. The business overdraft is at or near its capacity limit of $330,000. The defendant allows herself drawings from the business of only $1,000 per month. She has already paid on behalf of the estate approximately $185,000 for legal costs in connection with this litigation and $228,736 representing income tax, rates, outgoings and other legitimate expenses for which she is liable as executrix of the estate. Although I have been at pains to point out that the defendant's personal position is not of direct relevance, her individual income tax return for the year ended 30 June 2012 show a modest average annual taxable income for the period 2008 2012 of $97,527.
I should now turn to Robert Wilcox. He has not made a financial success of his life, despite being given a better start than most young men could have expected. Among many other things, his grandfather ensured that he received a sound education and paid his tuition and boarding fees at The King's School. No one is responsible for the position in which Robert Wilcox now finds himself, except himself. He may not own his own home and he may not have made a lot of money from his employment over the years, but he has no one else to blame. His unhealthy sense of entitlement may have constrained his ambition. Like many an expectant heir before him, he has not made the most of his opportunities, imprudently assuming that he and his brother would inherit their grandfather's estate. And, as I said in paragraph  of my first judgment, he gave no thought to the priority that his mother naturally deserved.
Robert Wilcox's current financial circumstances are modest but they are not utterly desperate. In court, he was at all times well groomed and presentable. He said that he has been in a long term stable relationship with a country girl from Cootamundra for over ten years. He resides in Darling Point in shared accommodation. He has been self-employed since at least 2001 and has his own ABN. He has been the proprietor of several businesses. These include a mechanical repair and maintenance business and a tree lopping and maintenance business. Neither business has strictly 'failed' and Robert Wilcox has not been made bankrupt. He simply said that the businesses became 'too hard'.
He is in communication with his father who is separated from his mother and lives in Lightning Ridge. His father recently won approximately $1.3 million playing Keno.
Robert Wilcox clearly has skills and expertise in connection with heavy machinery of the type used in agriculture, mining and for land clearing purposes. However, he seemed to wish to downplay the prospect of being able to make a living in that field. He gave the following affidavit evidence: Although my mechanical skills mean I could obtain work, for example, for a mining company, the income I would earn, although perceived to be generous as an employee under the current tax regime, I would be lucky to earn $100,000 net, whereas running the family agricultural business on my grandfather's estate I could generate income of approximately $2 million to $2.5 million per year.
In the witness box however, he asserted generally that he could get no work in the mining industry, and made vague statements about the global financial crisis. But there was no adequate evidence of his having tried to secure gainful employment. He said simply that there was no work and that his uncle told him that they were turning people away. I doubt that he was sufficiently motivated to find work. His delusional insistence on his entitlement to own and operate his grandfather's pastoral properties has I suspect, operated as a self-imposed impediment to his advancement in life.
At least Robert Wilcox has no debts, other than a solitary debt to the Australian Taxation Office, with which I will deal separately. He uses an accounting firm known as Grigg & Bligh Jones to prepare his financial statements and income tax returns. For the years ended 30 June 2012 and 30 June 2011, his income from contracting fees was $64,983 and $76,454 respectively, from which he employed subcontractors, hired equipment and expended not inconsiderable amounts on advertising. He owns a motor vehicle which is used in his business and a quantity of tools of trade, most of which is kept in a rented storage facility.
He currently receives unemployment benefits in the sum of $510 per fortnight. He said that this allowance 'supplements the little bit of money I earn out of the tree business. It helps me pay the rent'. His recourse to the Newstart allowance seems to be intermittent, as and when he thinks it can be justified. He has no current injuries although his counsel wished to emphasise several accidents that he had suffered in the past. They were relatively minor however and even Robert Wilcox did not appear to wish to overstate them. The debt to the Australian Taxation Office is approximately $107,000. I was informed that each time Robert Wilcox goes back on the Newstart allowance, the tax debt is frozen and interest ceases to accrue. Nonetheless, it remains a considerable burden, although I have to say that Robert Wilcox was remarkably unconcerned about it.
Wise & Just Testator
In these circumstances, I think that a wise and just testator, with knowledge of the circumstances at the date of hearing, would make some limited provision for his grandson. He would prefer to see the debt of $107,000 to the Australian Taxation Office discharged. And, without detracting from the core intention to leave his interests in the companies and pastoral properties to his daughter, he would, I think, wish to ensure that his grandson received a modest income supplement to assist him with the expenses of his life and work. Robert Wilcox himself proposed that, if he were to receive a payment from the estate in the nature of an annuity, its commencement could be deferred for up to two years in recognition of the harsh drought conditions that currently afflict the pastoral business which his mother is continuing to run. I propose to adopt that suggestion with the additional qualification that the term of the annual payments not be indefinite but that the payments run for seven years from the commencement date.
This will result in Robert Wilcox being debt free. In addition, if he continues in either business that he has conducted over the last decade, or obtains work in an employed capacity, the annual payment of $40,000 will constitute a modest, yet secure, safety net for a number of years until he is approximately fifty five years of age. By that stage, his mother, if alive, will be almost eighty years old and his father, if alive, will be older still. I would hope that the damage to family relations would by then have been repaired and that Robert Wilcox's future financial prospects will be improved.
I do not accept that Robert Wilcox will be unable to obtain gainful employment in the future especially once he has been forced to recognise that his grandfather's pastoral properties, or some of them, will not for the time being be handed to him on a plate. He has been moderately successful in the past. But since his grandfather's death in 2010, I doubt whether he has tried very hard to maximise his income earning potential. He has allowed himself to be side tracked by the litigation that he commenced against his mother. In my view, his problem has been a lack of motivation rather than a lack of skill or expertise. I will make an order that he be paid $387,000 out of the estate of the deceased $107,000 within 90 days and the balance by seven annual instalments of $40,000 commencing on 21 February 2016.
I am satisfied that the orders that I propose to make will not cause undue hardship to the estate or to the defendant.
The evidence satisfies me that they are affordable. I have structured the payments in such a way as to minimise the hardship to the estate. In the aftermath of this litigation, the estate will be required to meet a number of significant expenses, including the costs of the plaintiffs and the defendant, assuming that I make the usual order. There is also the sum of $228,000 that the defendant has already paid on behalf of the estate. Those amounts are and will be greater than the capital sum of $107,000 that I propose to award to Robert Wilcox, or the deferred annual payments of $40,000. If it is necessary for the estate to sell any property to meet its liabilities, it will not be simply because of the payment of $107,000 to Robert Wilcox or the annual payments of $40,000 to commence in 2016. The evidence of Mr Peart satisfies me that the sale of a small portion of the land on which the pastoral business is conducted could be achieved without detracting from the core profitability of the business. Given the considerable expenses which the estate is facing, I have no doubt that the necessity of such a sale is under active consideration.
Orders & Costs
For those reasons, I order that provision be made out of the estate of the deceased (Ian Francis Sanderson) in favour of the first plaintiff by the payment to the first plaintiff of the amount of $387,000, which sum should be paid as follows:
$107,000 within 90 days of this order;
$40,000 by seven annual instalments commencing on 21 February 2016.
I propose that the usual order for costs be made but I will entertain written submissions as to any special costs order for which the defendant may contend.