Russell Leslie Dunham (the deceased) died on 18 January 2022 without a Will. Divorced and without children at the time of his death. Narelle Gaye Lindsey ( the plaintiff) claimed to be the deceased’s unregistered domestic partner when he died and therefore seeks a grant of letters of administration over his estate.
Amanda Gaye Dean (the caveator) opposes the grant, submitting that:
(a) under r 8.06(2)(b) of the Supreme Court (Administration and Probate) Rules 2023 (Vic), the plaintiff does not have the status or relationship needed to apply for letters of administration; and
(b) under r 8.06(2)(c), the caveator herself has a superior claim.
In a summons filed on 24 June 2025, the plaintiff seeks, among other relief,
- summary judgment under s 63 of the Civil Procedure Act 2010 (Vic) and/or
- orders under the Court’s inherent jurisdiction to dismiss the caveat on the basis that:
(i) the caveator lacks standing; and
(ii) the caveator’s Grounds do not disclose a case warranting further inquiry.
Summary Judgment
The plaintiff seeks summary judgment under s 63 of the Civil Procedure Act 2010 (Vic) (CPA), arguing that the caveator’s objection has no real prospect of success because she lacks standing and cannot demonstrate a prima facie basis for her caveat. The CPA and the Supreme Court (General Civil Procedure) Rules 2025 (Vic) (SC(GCP) Rules) unquestionably apply to probate disputes, including applications for summary judgment.
The Civil Procedure Act 2010 (Vic) is designed to transform civil litigation by ensuring disputes are resolved fairly, efficiently, promptly, and at proportionate cost. It shifts the focus away from technical procedure and toward resolving the real issues in dispute, promoting cooperation and modern, outcomes-focused litigation practices.
Core Aims of the CPA
Fair, timely, and cost-effective justice: Avoiding unnecessary delay and expense. Proportionality: Ensuring that effort, cost, and process match the significance and complexity of the dispute. Cooperation and honesty: Parties and lawyers must work together constructively and act with integrity. Issue-focused litigation: Emphasis on resolving substantive disagreements rather than procedural gamesmanship. Appropriate dispute resolution: Encouraging mediation and other non-court processes where suitable.
How the CPA Operates
Overarching obligations: Parties must act honestly, have a proper factual and legal foundation for claims, disclose relevant documents, and move matters forward without delay.
Active case management: Courts adopt flexible procedures and play an interventionist role to keep cases on track and aligned with the Act’s objectives.
Enforcement through sanctions: Non-compliance can attract costs penalties, adverse orders, or even dismissal to ensure the overarching purpose is upheld.
Overall, the CPA fosters a cooperative, proportionate, and resolution-driven approach to civil proceedings in Victoria, ensuring the system facilitates justice rather than obstructing it.
s 63 test: “real” vs “fanciful” prospects
Section 63 asks whether the claim has a genuine—not merely fanciful—chance of succeeding. If satisfied with this, the Court may grant summary judgment, but authorities emphasise restraint. Because summary judgment cuts off a party’s opportunity to advance their case, courts must act consistently with the overarching purpose of the CPA and only intervene where it is clear there is no genuine issue requiring a trial.
The plaintiff’s affidavit, filed in support of the application for the grant of letters of administration, exhibits the deceased’s death certificate and an inventory of assets and liabilities showing a total estate valued at approximately $450,000. Additionally the plaintiff deposes to being the deceased’s ‘unregistered domestic partner’ from 9 November 2019 until his passing on 18 January 2022 including:
“I lived with the deceased continuously for a period of two years and two months before his death, on a genuine domestic basis. The deceased and I lived in a happy and loving relationship that was in every way equivalent to that of a married husband and wife.”
The plaintiff submits that, despite searches, they cannot locate any Will for the deceased, and that, as the deceased’s domestic partner, they are entitled to administer the deceased’s estate. They are also the sole beneficiary of the deceased’s intestate estate.
The s 64 discretion: even where no real prospect exists. Even if a claim appears to have no real prospect of success, s 64 preserves the Court’s discretion to refuse summary judgment where:
(a) the interests of justice weigh against it, or
(b) the dispute is of a type that requires a full hearing on the merits.
Procedural framework under Order 22
O 22 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) (‘SC (GCP) Rules’ allows a respondent to resist summary judgment “by affidavit or otherwise”, leaving open the possibility—albeit exceptional—that a caveator’s filed grounds and particulars alone may be sufficient.
In Re Munro [2018] VSC 747 Derham AsJ suggested that a caveator support their particulars with evidence, but the procedural rules do not strictly require affidavits in every case. In the present matter, the caveator relied solely on the written Grounds of Objection and filed no affidavits. Although earlier directions recorded that the caveator had no leave to file further material, those orders did not preclude filing affidavits otherwise permitted under the SC(GCP) Rules.
Does the Caveator Have Standing?
Section 58 of the Administration and Probate Act 1958 (Vic) (APA) permits a person to lodge a caveat to prevent a grant of representation. To do so, the caveator must have standing and comply with the Probate Rules. As the deceased died intestate the caveator may frame her objections under r 8.06(2), providing particulars that both establish their standing and disclose a prima facie basis for the objection.
Standing requires the caveator to show a sufficient interest in the proceeding—namely, that their rights may be affected by the grant. In practical terms, the caveator demonstrates that they stand to benefit if the Court refuses the grant; typically, where the caveator claims a beneficial interest under an earlier Will or the intestacy provisions.
Under intestacy, a caveator whose relationship was not recognised by the deceased has no standing, as a defeated grant provides the caveator with no benefit. A caveator cannot claim standing merely because they want to act as a “whistleblower”. Or expose wrongdoing. As Windeyer J observed in Poulos v Pellicer In the Estate of Culina [2004] NSWSC 504,
“Probate litigation is an interesting litigation. It is not to be undertaken or interfered with by outside busybodies.”
The plaintiff argues that the court should grant summary judgment because the caveator has no real prospect of proving standing. The plaintiff submits that statements in the Caveator’s Grounds indicating that the caveator lived with the deceased only “until 2021” and references to herself as the deceased’s “domestic partner or former domestic partner” amount to concessions that the caveator cannot meet the APA definition of an unregistered domestic partner.
Whether someone is an unregistered domestic partner—and therefore potentially a partner for intestacy purposes—requires consideration of both the APA and the Relationships Act 2008 (Vic) (RA). Under the APA, if an intestate dies without issue but leaves a “partner”, that partner receives the whole residuary estate. A “partner” includes a “domestic partner”, which may be either registered or unregistered.
An unregistered domestic partner must have been:
(a) living with the deceased as a couple on a genuine domestic basis at the time of death; and
(b) either continuously living with them for at least two years immediately before death, or sharing a child under 18.
Section 3(3) also requires the Court to consider all circumstances of the relationship, including the factors listed in s 35(2) of the Relationships Act 2008 (Vic) (RA).
As the party resisting summary judgment, the caveator must set out a factual basis supporting her alleged standing. The plaintiff argues that the caveator’s own statements show they were not living with the deceased for two years immediately before death, nor living as a couple at the time of death. Further, the caveator identifies no facts that could satisfy the criteria under the RA.
Caveator’s Standing
The caveator bears the burden of showing facts capable of proving that they remained the deceased’s domestic partner until their death. As the caveator did not meet that burden, the plaintiff submitted that the caveator has no interest in the estate and no real prospect of establishing standing.
The caveator’s submissions reiterate that they lived with the deceased for “over 30 years” from 1988, also asserting, without elaboration, that they are better suited to act as administrator. The caveators counsel clarified in oral argument that their client maintains they were the deceased’s domestic partner at the date of death.
However, the plaintiff’s evidence shows the caveator was not living with the deceased during the year before he died. The caveator does not identify any facts that suggest the domestic relationship continued beyond that point. Their Grounds rely on circumstances predating departure from the home. Much of the submissions focus instead on disputing the plaintiff’s relationship with the deceased, but this does not establish the caveator’s standing. Without demonstrating their interest, the caveator is little more than an “outside busybody”.
In oral argument, counsel suggested the caveator has standing because they could bring a Part IV family provision claim. However, citing no authority to support this as a basis for standing. The plaintiff accepts that a former de facto partner may have a Part IV claim, but notes that courts have rarely treated such a contingent interest as sufficient to justify a caveat.
McMillan J in Mataska v Browne [2019] VSC 62 observed that authorities differ, but a mere potential Part IV claim—without more—is generally insufficient; only in cases where there is a reasonable prospect of success may such an interest confer standing. Here, the caveator provides no particulars of any such claim. Even if she has a contingent Part IV interest, this alone is inadequate.
For these reasons, Goulden AsJ is satisfied that the caveator has no real prospect of establishing standing, and dismisses the caveat on that basis alone. However, if that conclusion were incorrect, the caveat would still be rejected for the separate reason that the caveator has failed to establish any prima facie case.
Caveator’s Prima Facie Case
The plaintiff seeks to have the caveat “struck out” under s 63 of the Civil Procedure Act 2010 (CPA)—in effect, asking the Court to dismiss it. She argues that the caveator’s Grounds do not disclose even a prima facie case. Put differently, the plaintiff contends that because the caveator cannot demonstrate a prima facie basis for her objection, her challenge to the grant has no real prospect of success. The caveator maintains that the Grounds disclose a case warranting investigation.
A caveator will have a prima facie case if there is “something to go on”—a case meriting inquiry. The threshold is not high. In assessing this question, the Court assumes the truth of the particulars pleaded. Speculation alone is insufficient, but the caveator need not prove their allegations or show that their version of events is the most persuasive—that task is reserved for trial. Further, the particulars must be considered collectively, not in isolation, with the Court examining the “overall narrative”.
The plaintiff argues that the Caveator’s Grounds fail to meet this standard. The affidavits’ particulars (provide the concrete details that give clarity and definition to the overarching assertions) amount to little more than bare assertions that the plaintiff “was not in a relationship with the deceased” or, if she was, the relationship lasted less than two years.
The particulars do not substantiate these core assertions. Even if accepted as accurate, the caveator’s statements of living with the deceased for 30 years do not lead to the necessary inference that the plaintiff could not also have been in a relationship with the deceased (whether overlapping or later), that the plaintiff did not live with him for the required two years, or that the caveator has a superior entitlement to administration.
The Grounds also contain confusing references to the caveator being both the deceased’s current and former domestic partner. Goulden AsJ concludes that the particulars do not establish a basis for investigating either:
(a) the allegation that the plaintiff does not hold the status in which she seeks administration (r 8.06(2)(b)); or
(b) the claim that the caveator has a better right (r 8.06(2)(c)).
The caveator bears the burden of showing cause against summary judgment. Filing evidence under r 22.05 of the SC(GCP) Rules to show cause “otherwise”, needing to file sufficiently particularised Grounds putting the plaintiff on notice of the case to meet. That required concrete factual detail about the alleged relationships—particularly any matters inconsistent with the plaintiff’s evidence filed in response to requisitions.
It is not for the plaintiff to prove the caveator’s assertions wrong. Nor can the caveator rely on an alleged text message from the plaintiff to the caveator’s daughter when it appears nowhere in the particulars and is not in evidence. The caveator had ample opportunity to provide more detailed particulars or supporting evidence, but elected not to do so.
For these reasons, Goulden AsJ dismissed the caveator’s objection as lacking any reasonable prospect of success. The plaintiff was unsuccessful in persuading the Court that this matter should nevertheless proceed to trial under s 64 of the CPA. Neither party submitted that it should.
Disposition
- The caveat is dismissed.
- The caveator must pay the plaintiff’s costs of and incidental to the summary judgment application, to be taxed if not agreed.