Stone v Braun

[2015] WASCA 103

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Self-represented litigants
3. › Duties of court
4. › Procedural fairness
5. › Whether court required to alert self-represented litigant to distinction between submissions and evidence
6. › Whether denial of procedural fairness where court disregarded oral submissions without informing litigant they were not evidence
1. Succession
2. › Family provision
3. › Application by adult child
4. › Family Provision Act 1972 (WA), s 6
5. › Two-stage process
6. › Whether adequate provision made
7. › Competing claims on testator's bounty
8. › Discretion as to quantum
9. › Whether error in ordering equal division of estate
1. Appeal
2. › Procedural fairness
3. › New trial
4. › Whether properly conducted hearing could have produced different result
5. › Order for retrial

Quick Take

Where it is objectively apparent that a self-represented litigant does not appreciate the distinction between submissions and evidence, the court is obliged to alert the litigant to that distinction before proceeding to determine the case without regard to the litigant's unsworn assertions. Failure to do so constitutes a denial of procedural fairness requiring a new trial unless a properly conducted hearing could not possibly have produced a different result. The purpose of the Family Provision Act 1972 (WA) is not to ensure an overall fair division of an estate; an award of an equal share simply on the basis that equality is fair would involve error.