FEDERAL COURT OF AUSTRALIA

Westpac Life Insurance Services Ltd v Estate of the Late Graham Brian Ugle [2019] FCA 1251

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 9.24(1) of the Federal Court Rules 2011 (Cth), this proceeding continue in the absence of a person representing the late Graham Ugle.

2.    The applicant pay into Court the amount of $51,500 within 28 days.

3.    The applicant’s costs of and incidental to this application be paid from the moneys paid into Court.

4.    The amount of the applicant’s costs of and incidental to this application be reserved to be dealt with on the papers, in consultation with a Registrar of the Court.

5.    Within 7 days, the applicant serve a copy of these orders and reasons on the late Graham Ugle’s sister, Ms Colleen Ugle and on Mr Irfan Yusuf, solicitor, of Peel Community Legal Service Inc.

6.    Within 14 days, the applicant make reasonable inquiries, including of Ms Colleen Ugle and Mr Yusuf, to identify and locate any other siblings of the late Graham Ugle.

7.    Within 28 days, the applicant serve a copy of these orders and reasons on any sibling identified and located as contemplated by order 6.

8.    Grant liberty to any legal personal representative or any family member of the late Graham Ugle to apply in relation to the balance of the proceeds remaining in Court after deduction of any payment made to the applicant in relation to its costs as contemplated by orders 3 and 4 above.

9.    The moneys paid into Court remaining after deduction of any costs to be paid to the applicant pursuant to order 3 be held until further order, pending determination of any entitlement of any person to those moneys.

10.    The applicant be excused from further attendance before this Court until further order.

THE COURT DECLARES THAT:

1.    The sum of $51,500 represents the amount payable by the applicant under its policy number DM169617 issued to the late Graham Ugle on or about 11 March 2003 as at 25 July 2019 (death benefit).

2.    The payment into Court of the amount of $51,500, as contemplated by Order 2, will be a payment made pursuant to s 215(1) of the Life Insurance Act 1995 (Cth).

3.    Once the applicant has paid into Court the amount of $51,500, the applicant will be discharged from any further liability under the policy in relation to the death benefit in accordance with s 215(2) of the Life Insurance Act 1995 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THAWLEY J:

1    This proceedings was commenced on 26 July 2019 by the filing of an Originating Application and Concise Statement. It was listed today for a first case management hearing. The applicant relied upon an affidavit sworn on 19 July 2019 by Mr Parsons, the National Resolutions Manager of the applicant. The applicant also relied on an affidavit of Mr Iyer, a solicitor for the applicant. The concise statement was certified by another of the applicant’s solicitors.

2    On or about 11 March 2003, the applicant issued to Mr Graham Ugle a policy of insurance bearing the number DM169617 with a commencement date of 5 March 2003 (Policy). Under the Policy, Mr Ugle was entitled to a lump sum benefit in the sum of $50,000 if (relevantly) he died in an accident. Mr Ugle was both the life insured and the policy owner under the Policy.

3    On or about 22 December 2004, the applicant received written notice of Mr Ugle’s death. The applicant conducted various investigations which indicated to its satisfaction that Mr Ugle died by accidental drowning. The applicant accepts that it is liable to pay a death benefit to the Estate of Mr Ugle under the Policy. The amount of the death benefit payable as at 25 July 2019 was $51,500 (the death benefit).

4    The applicant has also determined that Mr Ugle did not leave a valid will. The applicant understands that Mr Ugle’s next-of-kin are his siblings. Mr Ugle had no wife, de facto partner or children. The affidavit sworn by Mr Parsons reveals that, in the course of seeking to pay the death benefit, a lady (Ms Pickett) claimed to be the only child of Mr Ugle. However, Nicholson Celement Barristers & Solicitors wrote a letter to the applicant enclosing a signed note from Ms Pickett acknowledging that she was not in fact the daughter of Mr Ugle. Nicholson Clement acted for Ms Colleen Ugle, one of four sisters of the late Mr Ugle. Ms Colleen Ugle has advised that Mr Ugle had a total of four sisters and one brother. The applicant has not had any contact from Mr Ugle’s other sisters or brother, nor – as I understand the position – attempted contact with them.

5    In its Concise Statement, the applicant states:

Despite requests by the applicant starting in March 2006, Colleen Ugle has not (to the applicant’s knowledge) applied for or obtained Letters of Administration, and has not provided same to the applicant.

On or about 22 January 2018 the applicant agreed to release an advance of the death benefit (in the amount of $1,000.00) payable to a solicitor nominated by Colleen Ugle, to assist her in obtaining Letters of Administration. This advance was released to the solicitor on or about 4 July 2018. On or about 24 July 2018, the solicitor returned the advance, indicating that he had ceased acting for Colleen Ugle (for reasons he has not disclosed to the applicant).

In light of the facts above, the applicant has formed the view that the only method by which it may obtain sufficient discharge of the benefit payable to Graham Ugle’s Estate is to pay the money into Court.

6    Mr Iyer’s affidavit reveals the following. On 26 July 2019, he caused a letter dated 24 July 2019 to be sent to Ms Colleen Ugle enclosing a copy of the Originating Application, the Concise Statement and the affidavit sworn by Mr Parsons, referred to earlier.

7    On 5 August 2019, he called a telephone number considered to be that of Ms Colleen Ugle and spoke with a woman who identified herself as such. She confirmed that she had received the letter dated 24 July 2019 and that she had sent that letter on to her lawyer, “Jackie” of “Peel Lawyers” whose contact telephone number Ms Ugle provided. Mr Iyer later telephoned Peel Community Legal Service Inc (Peel Lawyers) and spoke with a person who identified herself as Ms Jackie Wallace. Mr Iyer indicated that the matter was listed before the Court on 8 August 2019, namely today.

8    On 6 August 2019, Mr Iyer received a telephone call from a solicitor from Peel Lawyers, Mr Irfan Yusuf. Mr Iyer informed him that the matter was listed before the Court on 8 August 2019, and further informed him that the amount payable to the applicant for its costs of the application was a matter for the Court to determine. Mr Yusuf sent an email to Mr Iyer later on 6 August 2019 in the following terms:

Dear Colleagues

ESTATE OF THE LATE GRAHAM BRIAN UGLE

Our Service is assisting Ms Colleen Ugle. We refer to our Mr Yusuf’s telephone conversation with your Mr Iyer this afternoon. We understand your client will be making an application in the Federal Court in Sydney in accordance with your letter to Ms Ugle dated 24 July 2019. Could you please keep us updated as to the outcome of said application.

9    The evidence indicates that the applicant has been attempting to pay the death benefit since March 2006. Notwithstanding its attempts it has not been able to do so. The evidence also indicates that the late Mr Ugle has no personal representative.

10    The applicant applies for an order that the proceeding continue in the absence of a person representing the deceased person and for declarations and orders permitting it to pay the amount of the death benefit into Court pursuant to s 215 of the Life Insurance Act 1995 (Cth).

11    Rule 9.24 of the Federal Court Rules 2011 (Cth) provides:

Deceased persons

(1)     If:

(a)     a deceased person was interested in, or the estate of a deceased person is interested in, any matter or question in a proceeding; and

(b)     the deceased person has no personal representative;

a party may apply to the Court for an order:

(c)     that the proceeding continue in the absence of a person representing the deceased person; or

(d)     that a person who has consented in writing represent the deceased person’s estate for the purpose of the proceeding.

(2)     An order under subrule (1) and any subsequent order made in the proceeding binds the estate of the deceased person as the estate would have been bound if the deceased person’s personal representative had been a party to the proceeding.

Note Before making an order under this rule, the Court may require the application to be served on persons having an interest in the estate, as the Court considers appropriate.

12    It is clear that paragraph (a) of Rule 9.24(1) is satisfied. I am satisfied that the late Mr Ugle has no personal representative and that, accordingly, paragraph (b) of Rule 9.24(1) is satisfied. In my view, it is appropriate to order that the proceeding continue in the absence of a person representing Mr Ugle. The effect of this is that the Estate of Mr Ugle will be bound by orders made in this proceeding to the extent it would have been bound if Mr Ugle’s personal representative had been a party to the proceeding: Rule 9.24(2).

13    Section 215 of the Life Insurance Act 1995 (Cth) is in the following terms:

215 Power to pay money into Court

(1)     A life company may pay into the Court any money payable by the company in respect of a policy for which, in the company’s opinion, no sufficient discharge can otherwise be obtained.

(2)     Payment of the money into the Court discharges the company from any liability under the policy in relation to the money.

(3)     Any money paid into the Court under this section is to be dealt with according to the order of the Court.

(4)     This section has effect subject to the Rules of the Court.

14    I am satisfied on the material before me that the applicant has formed the opinion that it cannot obtain a “sufficient discharge” in respect of the death benefit payable by it under the Policy. That opinion is rationally based and appears reasonable. Notwithstanding that this is the first case management hearing, I propose to make orders today. This will dispose of the matter so far as it concerns the applicant insurer save for costs, which I reserve. It is clearly in the interests of all concerned to keep costs to an absolute minimum. A prolongation of the proceedings can only operate to increase costs with the likely consequence of further reducing the amount payable to any person entitled to the death benefit or a portion of it.

15    As Allsop CJ noted in Swiss Re Life & Health Australia Ltd v Public Trustee of Queensland [2017] FCA 963 at [16], the usual order is that the insurer obtains its costs from the funds in question. The applicant has tendered a spreadsheet and other documents identifying its costs and disbursements. I propose to make orders to determine that amount on the papers.

16    I will also reserve liberty to apply with the intent of permitting any unknown or future personal representative of the late Mr Ugle, or any interested family member or members, to seek orders for payment of the death benefit less any costs ordered to be paid to the applicant out of the moneys to be paid into Court.

Associate:

Dated:    9 August 2019