There have been a number of appellate decisions in coronial law in the past twelve months.  Although none of these decisions change the law in any way that is likely to be of significance to the practical conduct of coronial proceedings, the authorities do contain helpful statements of relevant principles and useful examples of the application of those principles.

The cases are grouped into the following topics:

1. Cases concerning the decision to hold an inquest;
2. Findings and procedural fairness;
3. Referral of information to prosecuting authorities;
4. Non-publication orders; and
5. Decisions concerning autopsies.

Finally, this paper also considers the recent decision of the High Court in Burns v The Queen [2012] HCA 35, which concerns the question of whether a supplier of drugs may be guilty of manslaughter in circumstances where the purchaser of the drugs dies of a drug overdose in the supplier’s presence.   Although the decision in Burns does not concern coroners or coronial proceedings, it is important to coroners in jurisdictions where the coroner is obliged to forward information to prosecuting authorities where the coroner is of the view that a person has committed an indictable offence.

Cases concerning the decision to hold an inquest

There have been three recent appellate decisions concerning the decision to hold an inquest: Conway v NSW State Coroner [2011] NSWCA 319 (28 September 2011); Irfani v State Coroner [2011] WASC 270 (3 October 2011); and Taing and Nuoin v The Territory Coroner [2011] NTSC 58 (9 August 2011).  

Conway concerned a decision of the State Coroner refusing to hold an inquest into the death of M, a 15 year old young person who died in a motor vehicle accident in Sydney in 2003.  At the time, M was homeless.  The vehicle in question was stolen and was driven by a young man who was providing M with accommodation at the time.  M’s death had been thoroughly investigated by NSW police. However, M’s mother had ongoing concerns about the manner of her death, and sought that an inquest be held to investigate, inter alia, whether the Department of Community Services (“DOCS”) could have done more to assist M find accommodation.  

The State Coroner refused to hold an inquest, indicating that the manner and cause of M’s death was sufficiently disclosed, and that an inquiry into M’s relationship with DOCS was too remote from the manner and cause of M’s death.  Justice Barr agreed with this decision: Conway v Jerram [2010] NSWSC 371.  M’s mother sought leave to appeal from the decision of Barr J.  Leave was refused by the Court of Appeal on 28 September 2001.  

In refusing leave to appeal Young JA commented that a coroner has a “wide, but not unlimited, mandate to hold or not hold an inquest concerning the death of a person” (at [47]).  At para [49], his Honour observed that “in the usual cases of death, a line must be drawn at some point beyond which, even if relevant, factors which come to light will be considered too remote from the death.”

Taing and Nuong concerned a decision of the NT Supreme Court relating to a decision of the NT Deputy Coroner refusing to hold an inquest into the deaths of two fishermen who died in a fire at their campsite.  As with the death in the Conway case, there had been an extensive police investigation into the deaths.  

In the Supreme Court, Blokland J accepted that it would be “desirable” to hold an inquest if there were some “practical benefit to the next of kin in terms of better understanding … what occurred to the deceased, or that there be a benefit to the general public, a section of it, or to the overall administration of justice” (at [54]). Justice Blokland emphasised, however, that “[a]n inquest should not be held where it would clearly be a futile exercise.” (at [54] and [56])

Justice Blokland accepted that a “comprehensive” investigation had been conducted by police (at [65]).  In these circumstances, her Honour stated that “[w]ithout pointing to any further evidence or how an inquest would reveal such evidence it has not been demonstrated that an inquest into the deaths of the deceased would serve any useful purpose.”  For these reasons, Blokland J declined to order that an inquest be held.

Irfani concerned a decision of the WA State Coroner refusing to hold an inquest into the death of Fatima Irfani.  Ms Irfani died in a Western Australian hospital in 2003.  She had arrived at Christmas Island as a refugee in 2002.  She suffered from hypertension and hepatitis C.  In January 2003, whilst in detention, she complained of severe headaches over a number of days.  Around noon on 15 January 2003, Ms Irfani collapsed.  She was initially taken to the Christmas Island hospital, but was later that day flown to Perth in a critical condition.  A head CT scan showed that she had a intra-cranial haemorrhage.  Surgery was performed.  However, her condition deteriorated, and she died on 19 January 2003.

Ms Irfani’s family sought that an inquest be held into her death.  The issues to be raised in the inquest concerned the care and treatment provided to Ms Irfani in detention at Christmas Island and the timing of her transfer to Perth.  No issues were raised as to the care and treatment provided to Ms Irfani after the transfer to the Perth Hospital.

A coroner in Western Australia declined to hold an inquest.  Ms Irfani’s family sought an order from the Supreme Court requiring an inquest to be held.

As Ms Irfani was not “in care” at the time of her death, an inquest was not mandatory.  However, Ms Irfani’s family argued that because Ms Irfani was in immigration detention, the death was analogous to a death in custody.  

Justice McKechnie in the Supreme Court in Western Australia accepted that there is a public interest in holding a public inquiry into deaths occurring in immigration detention (at [37]).  However, his Honour also observed that “the ultimate purpose of the Coroner is to inquire into a particular death.” (at [37]).  His Honour expressed the view that the circumstances of the particular death, “being well documented” would not lead to the “wider inquiry sought by the plaintiffs.” (at [37]).  Justice McKechnie emphasised that “the focus of an inquest is into the death and the immediate circumstances giving rise to the death.  It is not a general inquisition into the detention system.” (at [43]) In this regard, his Honour observed that two independent experts briefed by the Coroner had concluded that the standard of the medical response on Christmas Island was reasonable, subject to one exception.  That one exception was the administration of a drug, however, there was no evidence that that drug was in fact administered or that it had anything to do with Ms Irfani’s death.

Justice McKechnie also observed that there had been a lengthy delay from the date of the death to the date that the Supreme Court was asked to order that an inquest be held (at [40]).  Whilst such a delay is not a barrier to an inquest being held, it is “one of the relevant facts to be taken into account.” (at [40])

His Honour observed that the Coroner had undertaken an investigation and would make findings.  His Honour stated that he was “unpersuaded that a formal inquest as part of this investigation [would] sufficiently advance the Coroner’s knowledge in this case in the interests of justice.” (at [47])

Comment: It may be observed that there are a number of themes that recur in the above three decisions.  First, the decisions confirm the width of the coroner’s discretion as to whether or not to hold an inquest. The decisions (particularly Conway and Irfani) also confirm that the starting point when determining whether or not to hold an inquest is the coroner’s statutory duty to determine the date, place, cause and circumstances (or manner) of death. Finally, the decisions confirm the importance of a thorough police investigation as part of the coronial process.  It may not be necessary to hold a public hearing where there has been a thorough investigation, and it appears from that investigation that a public inquest will not shed any further light on the date, place, cause and circumstances of the death.

Findings and procedural fairness

Onuma v Coroner’s Court of South Australia [2011] SASC 218 (9 December 2011) is an interesting decision of the Supreme Court of South Australia, which provides guidance to coroners on questions of procedural fairness.

Onuma concerned an inquest into the deaths of two elderly women who each died following surgery for a vaginal prolapse. The same surgeon performed the procedure in each case.  Both women suffered from a perforated bowel that was caused at some stage during their respective surgical procedures.

At the conclusion of the inquest, the Deputy Coroner made findings.  In those findings, the Deputy Coroner was critical of the competence of the surgeon who performed the surgeries in question. The Deputy Coroner also made recommendations to the Royal Australian and New Zealand College of Obstetricians and Gynaecologists concerning the competence of surgeons performing vaginal prolapse surgery.

The surgeon in question appealed the Deputy Coroner’s findings. 

The grounds of appeal in the Supreme Court included complaints about the findings made by the Deputy Coroner, the comments made by the Deputy Coroner, the recommendations made by the Coroner and a complaint about a denial of procedural fairness. 

The complaint about the formal findings related only to one of the deceased — Mrs Hillman.  The Deputy Coroner found Mrs Hillman’s cause of death to be “hypoxic ischaemic brain injury due to an intracerebral and subdural haemorrhage as a consequence of anticoagulation given to treat a left subclavian vein thrombosis and pulmonary thomboemoli, and peritonitis following perforation of the small bowel during surgery for vaginal prolapse.” (at para [25])

In considering this ground, Kelly J emphasised the distinction between findings as to the “cause” and “circumstances” of a death, and observed that the coroner has an “obligation to inquire into all of the facts which may have operated to cause the death of the deceased and as well to inquire into the wider circumstances surrounding the death of the deceased”. Justice Kelly concluded that the Deputy Coroner was required to set out the case and circumstances of Mrs Hillman’s death, “which necessarily included the unfortunate and catastrophic series of post-operative complications described in the reports…” (at para [40])

Justice Kelly acknowledged that these matters were traversed in the “Findings of Inquest”.  However, her Honour found that these matters should have been included in the express finding which the Deputy Coroner made about the cause of death (at para [42]).

The appellant also complained about particular comments made by the Deputy Coroner concerning the appellant’s lack of competence.  Justice Kelly held that the comments were not supported by the evidence, observing that it was difficult to say that “something has been done incorrectly or wrongly on the basis of one-off, or two-off, events.” (para [58])

However, although her Honour found that the Deputy Coroner should not have commented that the surgeon lacked competence, the Court declined to make a finding that the Deputy Coroner should have found that the appellant was appropriately qualified and did possess the necessary skill and competence.   In the Court’s view, there was insufficient evidence before the Coroner to justify a finding on this topic one way or another.

As to the complaints about the recommendations, Kelly J disagreed with the appellant’s submission that the recommendations were based solely on the impugned comments, observing that the expert evidence did provide a proper basis for the recommendations.  However, her Honour also held that the Supreme Court did not have jurisdiction to set aside recommendations.  In her Honour’s view, recommendations were not part of the statutory “findings” which are subject to an appeal under s. 27(1) of the Coroners Act 2003 (SA).  In this regard, her Honour disagreed with the decision of Debelle J in Saraf v Johns (2008) 101 SASR 87.

The final complaint related to an allegation that the appellant had been denied procedural fairness because the Deputy Coroner made comments concerning his competence without first advising him of the Coroner’s intent to make such comments.  In rejecting this ground, Kelly J commented that there was “no doubt” that a Coroner is subject to rules of natural justice and fairness, and that those rules “require that any party likely to be affected, either directly or indirectly, by a decision is to be given the opportunity to be heard and to make submissions before any decision is made”. (at [95]) However, her Honour observed that Counsel Assisting had asked (over objection) a number of questions of the appellant and relevant experts relating to the appellant’s competence.  Moreover, Counsel Assisting had specifically raised the topic of the appellant’s competence in closing submissions, and counsel for the appellant had had a right to reply to these submissions.  In view of these matters, Kelly J concluded that the Deputy Coroner had complied with his duty to afford procedural fairness.

In Danne v the Coroner [2012] VSC 454, a surgeon who was a party to an inquest sought access to a postmortem CT scan and tissue samples.  The Coroner granted access, conditional on the surgeon providing the Coroner with copies of any expert reports subsequently prepared concerning this evidence. 

The Supreme Court of Victoria set aside the Coroner’s order.  The Court held that the Coroner had erroneously sourced the power to make the condition as being an aspect of the coronial jurisdiction over the body of the deceased.  The Court held that, once removed, tissue samples are no longer part of the body. The Court also held that the condition breached the coroner’s duty to afford natural justice, and that the condition was inconsistent with legal professional privilege.

Referral of information to prosecuting authorities

In Nona and Ahmat v Barnes [2012] QSC 35 (29 February 2012), the appellants sought review of a decision of the Queensland State Coroner refusing to refer information to the Director of Public Prosecutions (“DPP”) pursuant to s. 48(2) of the Coroners Act 2003 (Qld).  In particular, the appellants sought an order that the State Coroner provide a “statement of reasons” pursuant to the Judicial Review Act 1991 (Qld). 

The Supreme Court of Queensland dismissed the application, finding that the decision of the State Coroner refusing to refer the information was not a “reviewable decision” under the Judicial Review Act because it did not “confer, alter or affect legal rights or obligations”.

Non-publication orders

Bissett v Deputy State Coroner [2011] NSWSC 1182 (7 October 2011) concerned an inquest held in New South Wales involving a police shooting of a mentally ill man,  Adam Salter.  A critical incident investigation was held, and in the course of that investigation, a “walk through” interview was conducted between investigating officers and Sergeant Bissett, the police officer who had shot and killed Mr Salter.  The walk-through interview was recorded on DVD.

A critical issue in the inquest was whether Sergeant Bissett had shot the deceased in self defence or in defence of other police officers.  Some of Sergeant Bissett’s answers in the DVD were exculpatory, and some of her answers were incriminatory. 

The DVD was admitted into evidence (over objection) and the ABC made an application for access to it.  The Deputy State Coroner granted access, but imposed a short non-publication order to enable Sergeant Bissett to approach the Supreme Court to seek an injunction prohibiting the Coroner from providing the DVD to the media.

Justice Hulme held that it was appropriate for the transcripts of the DVD to be published, but that, until further order, there should be no publication of the DVD “walk through” itself. Justice Hulme took into account that there was a real possibility that the Deputy State Coroner would refer the matter to the DPP and that Sergeant Bissett may be charged with a serious criminal offence.  His Honour also took into account the fact that there was a substantial possibility that the DVD walkthrough would not be admitted in any trial.  In these circumstances, publication of the DVD could jeopardise any future trial.

Justice Hulme distinguished the DVD from the publication of other evidence before the coroner, including the transcript of the DVD, stating “in its inherent nature, it will be appreciated not simply by one sense, but by two — hearing and sight.” (at [25])  Because of this, his Honour considered that the DVD was more likely to be remembered than a mere publication of the transcript.

In these circumstances, his Honour accordingly concluded that the publication of the contents of the DVD was liable to prejudice the proper administration of justice and that publication should thus be restrained: at [27].  However, his Honour also held that permanent prohibition of publication of the DVD was not required, and that publication should only be delayed until it became apparent that no trial of the Sergeant Bissett was likely in the foreseeable future, or that any such trial had been held.

Note: In Bissett, the Court erroneously applied the Courts Suppression and Non-Publication Orders Act 2010 (NSW), which does not apply to coronial proceedings.  The appropriate legislation was s. 74 of the Coroners Act 2004.  However, the principles which Hulme J applied would appear to be of general application.

It may also be of interest to note that the Bissett inquest led to a Police Integrity Commission Inquiry which was held this year into the conduct of the critical incident investigators.  The decision of the Inquiry is pending.

Decisions concerning autopsies

There are two recent decisions of the Northern Territory Supreme Court concerning autopsies: Evans v Northern Territory Coroner [2011] NTSC 100 (6 December 2011) and Raymond- Hewitt v Northern Territory Coroner [2011] NTSC 94 (22 November 2011).

Evans and Raymond-Hewitt each concerned the question of whether an autopsy should be ordered in circumstances where the deceased were indigenous persons, and where the family of the deceased strongly objected to the autopsy on spiritual grounds.

Evans concerned a young baby who had died in his sleep.  The likely cause of death was SIDS.  Raymond-Hewitt concerned an indigenous man who had died in a road accident when his four wheel drive collided with a Mack Truck on the Arnhem Highway.

In both cases, the Supreme Court directed that no autopsy be held.  In reaching these determinations. the Supreme Court in both cases emphasised that there was no suggestion of foul play.  The Court observed in both cases that there was a public interest in making an accurate finding as to the cause of death, but also observed in both cases that it was relatively unlikely that an autopsy would shed any further light on the cause of death.

Comment: The above cases illustrate that genuinely held spiritual beliefs of the family of the deceased will often override the public interest in accurately determining the cause of death, particularly where there is little likelihood of an autopsy shedding any further light on the cause of death unless there is any suspicion of foul play, in which event, spiritual concerns will take second place to the public interest in investigating those suspicions.

Criminal law decision: manslaughter for death resulting from a drug supply

Burns v The Queen concerns the liability of an accused for manslaughter arising out a drug supply.  The facts, briefly stated, were as follows.  The appellant and her husband jointly supplied the deceased with methadone.  The deceased injected the methadone within the appellant’s apartment, but it was not clear whether the appellant assisted the deceased with the administration of the drug.

The deceased remained in the apartment for a period of time after injecting the methadone.  The appellant told the deceased that had to leave.  The appellant’s husband assisted the deceased to leave the apartment.  The following day, the deceased’s body was found in a toilet block in the yard of the appellant’s apartment. A forensic pathologist gave evidence that the deceased died from a combination of the methadone and a prescribed drug which the deceased had taken earlier.

The appellant and her husband were each charged and were each convicted of manslaughter.  The appellant’s husband died in custody without any appeal to his conviction.  The appellant appealed her conviction, first to the NSW Court of Criminal Appeal, and then to the High Court.

In the High Court, the prosecution relied on two alternate bases for sustaining the conviction of manslaughter: namely, manslaughter by unlawful and dangerous act and manslaughter by criminal negligence.  By a majority, the High Court held that the conviction for manslaughter could not be sustained on either basis.  In dissent, Heydon J expressed the view that a conviction for manslaughter by unlawful and dangerous act was available.

Manslaughter by unlawful and dangerous act:  In the High Court, the Crown conceded that the act of supply could not, of itself, sustain a conviction for manslaughter by unlawful and dangerous act.  Every member of the High Court accepted that this was a proper concession. 

All members of the High Court accepted that the supply of an illicit drug is unlawful, however, they held that the supply of a drug is not dangerous.  The Court explained that supplying an illicit drug is not dangerous because illicit drugs are not dangerous in and of themselves. Rather, illicit drugs are only dangerous if they are consumed.  In this regard, the Court stated that the voluntary act of the deceased in consuming the methadone broke the chain of causation, so that it could not be said that the appellant had, in supplying the methadone, “caused” the deceased’s death.

Although the Crown had conceded that the act of supply was not sufficient of itself to sustain a conviction for manslaughter by unlawful and dangerous act, the Crown sought to maintain the conviction on the basis that the appellant, acting in concert with her husband, had assisted in the administration of the drug to the deceased. 

The majority did not decide whether assisting in the administration of an illicit drug could sustain a conviction for manslaughter by unlawful and dangerous act.  Rather, the majority found that there was insufficient evidence for the Crown to establish that the appellant had, in fact, assisted in the administration of the drug.  Justice Heydon dissented on this point — his Honour would have ordered a retrial on the basis that there was sufficient evidence for a jury to find that the appellant had assisted in the administration of the drug.

Manslaughter by criminal negligence: In order to sustain a charge of manslaughter by criminal negligence, the Crown must first establish that there was a duty between the accused and the deceased which required the accused to act. 

All members of the Court held that the relationship between a supplier of drugs and the purchaser of drugs did not give rise to any relevant duty.  In making this finding, the Court emphasised again that the appellants’ actions in supplying drugs to the deceased did not “imperil” his life — rather “the imperilment of the deceased was the result of his act in taking the methadone.” (at [105])

In the circumstances of this case, the Court determined that there was no relationship between the appellant and the deceased which would have required the appellant to obtain medical assistance for him. 

Belinda Baker

Footnote

1. The views in this paper are those of the author’s and should not be taken to represent the views of the NSW Crown Solicitor.

A historical note

If we were to delve into history2, we would discover that the English common law system originally required that estates in fee simple and in fee tail general be bequeathed to the eldest son of the testator, with all other children being excluded; however, it was possible even in the earliest common law times to deprive an heir by inter vivos transfer.3  After The Statute of Wills was passed in 1540, a testator could also deprive his heir by will4 and after 1646 all children could be deprived of land inheritance. Widows were protected by the law of dower, which allowed a widow the use for her life of one-third of her husband’s real property, and widowers by curtesy, which allowed a widower with a child of the marriage the use for life of all of his wife’s land. Neither dower nor curtesy could be defeated by will or by inter vivos transfer.

As to personal property, at common law, all of a wife’s personal property passed to her widower absolutely, unless he consented to a different disposition in her will, or by inter vivos transfer. A deceased husband’s personal property was subject to forced (fixed) shares. A surviving wife was entitled to half of her deceased husband’s net personal property by forced share where there were no children of the marriage. This rule also applied where there were surviving children but no widow. The remaining half of the personal property could be left by will as the testator pleased. Where a wife and children survived, the wife was entitled to a one-third forced share, and the children to a one-third forced share, with the remainder to be disposed of by will as the testator wished.5 Forced shares were first recognised in 1215,6 but had largely fallen out of use in England by 1400,  in Wales by 1696, and were completely abandoned in all areas of England in 1724.7

As the 19th century progressed, the idea of testamentary independence became more embedded in the common law. The Dower Act 1833 (UK) allowed a husband to overturn his wife’s dower by will or by inter vivos transfer. In the absence of forced shares, this allowed husbands to leave their entire estates away from their widows and children if they so wished. After the Married Women’s Property Act 1882 (UK), wives could likewise leave all their property away from their widowers and children.

The modern forced share approach can be contrasted with that of statutes in a small group of common law countries which give a wide discretion to the Courts to divide an estate under dispute, commonly referred to as either family or dependants’ provision or testator’s family maintenance.

The notion of total testamentary freedom was a construct of the nineteenth century, an offshoot of the style of English laissez-faire liberalism that was fashionable at the time.  However, it was recognised late in the nineteenth century that testamentary freedom of this type allowed some testators to ignore their responsibilities to close family, particularly spouses and children. This a problem in the then newly developing, but wealthy, dominions of Australia, New Zealand and Canada, and was fanned by an indignant press which reported several notorious cases of wealthy men dying and leaving their widows and children unprovided for.8

Our Family Provision legislation originated from New Zealand legislation, the Testator’s Family Maintenance Act 1900, thought to be innovative and which attracted much attention in the common law world at the time.  It was copied for both testate and intestate situations in English law, and the provinces of Canada (other than Quebec).  It actually had its genesis in an 1877 Act which enabled illegitimate children under 14 to apply for maintenance out of the estate of deceased parents, the Destitute Persons Act 1894 (NZ), and the Native Land Court Act 1894 (NZ) which provided that Maori applicants were to be left with ‘sufficient land for their maintenance’ after claims alienating Maori land reserves to white settlers.

The 1900 Act was replaced by the Testator’s Family Maintenance Act 1906, which extended the time period for applications from six months to twelve months from the date of probate, and allowed for provision to be made in the form of either lump sums or periodical payments. This Act was in turn repealed and replaced by the Family Protection Act 1908 and the idea of family provision quickly spread throughout Australia, and eventually to Canada and the UK.

Queensland Legislation

In Queensland, Family Provision legislation confers rights on applicants, typically spouses, de facto spouses, children (including adopted and stepchildren) and specifically defined dependants9 to apply to the court to overturn bequests in wills which do not adequately provide for the maintenance and support of the applicants. This is clearly an interference with testamentary freedom, and is supported by both legislation and the courts on public policy grounds.

The relevant section of the Queensland legislation is s. 41:

(1) If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

…………

(8) Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased; but the court may at its discretion hear and determine an application under this part although a grant has not been made.

An often cited statement of basic principle underlying this legislation is that of Salmond J in In re Allen (deceased), Allen v Manchester:

‘The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.’

It was adopted by the Privy Council in a New South Wales appeal in Bosch v Perpetual Trustee Co. That case, in turn, has been followed and applied many times.

In McCosker v McCosker, Dixon CJ and Williams J, referring to what is sometimes called the primary or jurisdictional question, said: 

“The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v Perpetual Trustee Co (Ltd) the word ‘proper’ in this collocation of words is of considerable importance. It means ‘proper’ in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent.”10

Singer v Berghouse

In 1994, in Singer v. Berghouse,11 the High Court made the authoritive re-statement of the approach largely adhered to by the court when considering Family Provision applications.  The majority of that court made the following comments:

“In Australia it has been accepted that the correct approach to be taken by a court invested with jurisdiction under the legislation of which Act (Family Provision Act) (NSW)) is an example that was stated by Salmon J. [Re Allan v. Manchester (1921) 41 NZLR 218].  In that case His Honour said (at 220-221):

‘The provision which the court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances’

For our part we doubt that this statement provides useful assistance in elucidating the statutory provisions.  Indeed references to “moral duty” or “moral obligation” may well be understood as amounting to a gloss on the statutory language”.

It is true that the Act is silent in respect of the terms “moral obligation” or “moral duty”.  The jurisdiction of the court is invoked only when, by the terms of Section 41(1) is satisfied, as a matter of exercise of its discretion, that adequate provision is not made from the estate for the proper maintenance and support of, in this case, the adult son of the deceased.

Singer, however, had its detractors. For example, in the Victorian Court of Appeal, Callaway JA took a different view when he said:

“[I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator’s dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator’s bounty and give it to someone else. In conferring a discretion in the wide terms found in s.91, the legislature intended it to be exercised in a principled way”.12

Grey was cited13 for the proposition that the jurisdictional pre-condition stated as part of the two-stage test in Singer’s case could not be made out unless the court was satisfied the deceased had failed, by his will, to fulfill his moral duty to a younger son.  The same sentiments were expressed by McDonald J in Coombes v Ward14 and the same path was been followed by Judges in Tasmania15 and Western Australia.16

Such a trend to debate the correctness of reliance on what was said in Singer can hardly be said to have extended to judicial writings in Queensland although in Chapman v. Chapman17 Cullinane J made it clear that, in his view, moral claim and moral duty, remain relevant. 

He said:

“the appellant accepted His Honour’s finding that the deceased owed a moral duty to the respondent which had not been satisfied by their bequest ..… on the other hand the moral claim of the appellant was a very strong one”.

Almost exactly ten years ago, at a QLS Succession Law Conference (now) Justice Alan Wilson in further developing a paper he had delivered at an earlier,  carefully examined these cases and other academic writings to show that the High Court’s dictum was wrong in that “it ignored the historical, societal and philosophic underpinnings upon which the remedy was constructed”.

What is clear is that, by its terms, Section 41 of the Succession Act is designed to protect eligible persons where inadequate provision (or no testamentary provision) is made for their proper maintenance and support in life.  Singer goes no further than this with what has become known as the ‘two stage process’.18 

There is a threshold test.  An applicant must show that he has a prima facie case that adequate provision has not been made. This is reflected in the Practice Direction.19

The need for the applicant to establish a moral claim to further provision became a matter of judicial debate and has clearly been endorsed as a useful perspective from which to assess the statutory criteria.  Gleeson CJ said in Vigolo v Bostin:

“In explaining the purpose of testator’s family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning. In some respects, those standards change and develop over time. There is no reason to deny to them the description “moral”. As McLachlin J pointed out in the Supreme Court of Canada, that is the way in which courts have traditionally described them. Attempts to misapply judicial authority, whatever form they take, can be identified and resisted. There is no occasion to reject the insights contained in such authority.”20

In Vigolo, a claim was made by an adult son who had worked for 20 years on his father’s farm. The stated inducement was that the son would receive the farm upon the father’s death. However, some years prior to the father’s death, there was a dispute between father and son, resolved by a Deed of Settlement entered into at arms length and on commercial terms.  At the time of the father’s death, no provision had been made for the son who sought further provision under the relevant statute.

The claim was not put on the basis of the applicant’s need because he was quite well off and in a much better financial position than his siblings. However the claim was put purely on the basis that the deceased had a moral obligation to the applicant bearing in mind his prior work in the family farming enterprise and promises (relating to the farm) made to him during the currency of that enterprise.

In essence, in the judgment of Gleeson CJ and the joint judgment of Heydon and Callinan JJ, the secure financial position of the applicant was not determinative of the issue. Gleeson CJ noted that the fact that the applicant had been financially advantaged by his father (by being included in the farming enterprise) and had been adequately compensated for his extensive efforts upon dissolution of that enterprise was “significant”. Heydon and Callinan JJ held that adequacy of provision was not to be assessed simply in light of whether the applicant had the independent means to live comfortably, but was to be assessed in all of the circumstances, including promises of the kind made to the applicant and the circumstances in which those promises were made. Gummow and Hayne JJ also appeared to consider the promises significant.

Taken as a whole, the judgment appears to contemplate that applicants may succeed on a claim even if they have more than sufficient resources of their own, on the basis that all relevant factors must be balanced to arrive at a conclusion as to whether “adequate” provision has been made. In short, it is again confirmed that significant wealth will not be an insuperable hurdle to a successful claim.

Adult children

My brief for this paper was to consider claims competing with variously described entitled persons by applicants within the category adult children. This has always been a contentious category, especially, at least in earlier times, that of adult sons.  The position was first discussed in the New Zealand decision of Allardice v Allardice.21

In that case, the testator had been married twice, with four adult married daughters and two adult sons by his first wife, and a widow and six children from his second marriage. He left his entire estate to his second family, with no provision for the adult children. At first instance, the Supreme Court denied any provision to all of the six adult children of the testator’s first marriage; however, on appeal to the New Zealand Court of Appeal, three of the married daughters were granted provision of small amounts by monthly instalments. The court was not entirely dismissive of the claims of the adult sons, but felt that they should be self-supporting, stating:

‘As to the sons, I have doubts whether some provision ought not to be made for them. They are, however, physically able…If they had any push, they should, considering their age, have ere this done something for themselves, and to settle money on them now might destroy their energy and weaken their desire to exert themselves.’

 In Australia, the adult son issue was discussed by Fullager J in In re Sinnott:22

‘No special principle is to be applied in the case of an adult son. But the approach of the Court must be different. In the case of a widow or an infant child, the Court is dealing with one who is prima facie dependent on the testator and prima facie has a claim to be maintained and supported. But the adult son is, I think, prima facie able to ‘maintain and support’ himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act.’

McTiernan J in Pontifical Society for the Propagation of the Faith v Scales23 stated that:

…the fact that an applicant is an adult son does not necessarily mean that relief in applications of this character must be refused.  But such cases present special difficulties and, of course, before relief can be granted it must appear that the circumstances are such that the applicant is …left without ‘adequate provision for his proper maintenance and support’. But what is ‘adequate’ and what is ‘proper’ must be determined in the light of all the circumstances of the case’.24

We know that any special need requirement has been lessened.  In Hughes v National Trustees, Executors and Agency Company of Australasia Ltd, Gibbs J said:

‘In some cases a special claim may be found to exist because the applicant has contributed to building up the testator’s estate or has helped him in other ways. In other cases a son who has done nothing for his parents may have a special need. This may be because he suffers from some physical or mental infirmity, but it is not necessary for an adult son to show that his earning powers have been impaired by some disability before he can establish a special need for maintenance and support. He may have suffered a financial disaster; he may be unable to obtain employment; he may have a number of dependants who rely on him for support which he cannot adequately provide from his own resources. There are no rigid rules; the question whether adequate provision has been made for the proper maintenance and support of the adult son must depend on all the circumstances…’.25

Later cases have established that there are no strict principles in awarding provision to adult sons, or to adult children generally26 but that each case is subject to judicial discretion with the circumstances of the adult child, whether of health, finances or any other relevant issue, being discussed in some detail before the judge awards whatever provision he or she thinks ‘proper’.

About twenty years ago a number of practitioners, apart from those who appeared for the executors, were surprised by an order made by Shepherdson J in Mayne v Perpetual Trustees Queensland Limited27 when the younger of two sons succeeded in an application for further provision out of the estate of their late father.  It was a contest between a 56 year old son, Bill, for whom no provision was made in the will, and his 63 years old brother, John, a co-executor and the residuary beneficiary.  The net value of the estate after payment of legacies to two daughters which reduced it by $300,000 was $1.36 million. Both the applicant and the respondent had been taken into a grazing partnership with their father, without paying for it, although they both worked for the benefit of that partnership and another company in which they each held a B class and C class share respectively.  By the time the residuary beneficiary was in his early 50’s and the applicant in his mid 40’s, the partnership was dissolved and arrangements were made such that the applicant no longer was a member of it or a shareholder in the company.  The testator formed a new partnership with the residuary beneficiary and they both continued on as shareholders in the company.  Disputes arose between the two sons concerning finalisation of accounts.  At the time of the hearing, the applicant’s net asset worth was said to be some $510,000.  His brother’s net worth was said to be about $1.04 million.

His Honour found that Bill and John had each contributed significantly to the acquisition and build up of the testator’s assets yet the testator completely excluded Bill from his bounty. The reasons for this were set out in the will as follows:-

“I HEREBY DECLARE that I have not provided for my son WILLIAM  STEWART COLBURN MAYNE because by reason of the dissolution of the family partnership of Mayne and Sons and my acquisition of his shares in the Mayne Cattle Company I am convinced that my said son has already received a full share of the family assets and therefore is not entitled to any portion of my remaining estate which is required to provide my wife my daughters and my son Walter John Colburn Mayne with an inheritance and also to reimburse my said son for practical management of my interest in pastoral pursuits and as a co executor of my estate.”

Despite argument that weight should be given to the testator’s reasons expressed in that clause in the will,28 His Honour found nothing that reflected on Bill’s character or going to conduct which could cause him to find Bill disentitled to an order in his favour.  The finding that drew some interest in the appeal against His Honour’s decision was that at the date of death the applicant, Bill, was in a situation of special vulnerability in that if for any reason he was unable to continue to work his properties, his and his wife’s business would probably collapse and his son may not complete his education and that the testator must have known or should have foreseen that when he made his will success for graziers in the area was subject to the vagaries of the weather and that his grandson had not completed his education.

His Honour, in view of the size of the estate, relied on Adam J’s reference, in Re Buckland (Deceased)29:-

“The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance”.

His Honour made provision for the applicant in the sum of $550,000 at an interest rate to that which had been provided for from the date of death by the testator in his will for the legacies for his daughters.  Now, while His Honour made reference to Hughes‘ case30 which had established that there are no rigid rules applicable to an application by an able-bodied adult son and that the need to show some “special need or special claim” may generally speaking be required but it is not essential in every such case, depending on the circumstances.31

On appeal, both Fitzgerald P and de Jersey J, in a joint judgment, were critical of the reasoning of Shepherdson J’s approach to the clause explaining why the testator had excluded the applicant and his emphasis on the possibility of a recurrence of a back problem but they fell short of finding a sufficient basis for overruling the decision that adequate provision had not been made by the testator though they had difficulty in determining what matters had influenced his exercise of discretion in arriving at what they referred to as “the substantial sum of $550,000”.  They said that the superior financial position and his relative lack of need did not justify an increase of what may be ordered in favour of the respondent applicant which was limited to the amount which was adequate for his proper maintenance and support.  Allowing the appeal, the sum of $300,000 was substituted for the original figure. 

Pincus JA also took the view there was no sufficient evidence to justify the significance attached to the circumstances concerning the contingency of the respondent’s prior back problem returning and interfering with his work capacity.  He disagreed with the trial judge’s view that the respondent’s position at the date of death was one of “special vulnerability” but the finding with respect to building up the estate had justified a view that there was a moral claim which the testator should have recognised.

Even with the reduction of the value of the order for provision by the Court of Appeal, many Succession lawyers thought the floodgates had been opened, not only because of the size of the award, though reduced, but because it might otherwise have been thought that there was a serious question as to whether the applicant was entitled to any relief in light of the earlier authorities that suggested that a special need or special claim must be shown to justify intervention in favour of an adult son.32

This can be contrasted with a decision of McMeekin J in Dawson v Joyner,33 less than twelve months ago. The relevant facts can be summarized as follows.  The testator died on 15 April 2009 aged 79 years. His marriage had ended in divorce in 1985-86 and a property settlement reached. The applicant, Garry, the testator’s elder son was born 25 January 1962, (49 at trial, 47 at time of his father’s death). He fell out with his father at the time of his parents’ divorce and remained estranged, at least, for the next 22 years. The respondent, Mr Leigh Joyner, the executor of the estate, opposed the application with support from the only other child of the deceased, Ross Dawson. Another beneficiary under the last will was not served as there was no intention that her entitlement would be affected in any way by any order made. Ross was born on 4 December 1963. Both sons were married although Garry, the applicant, separated from his wife Wendy in April 2010. The separation was said to be irreconcilable.

Both Garry and Ross have children — Garry’s were aged 23, 21 and 18. They were all employed. Ross has two children aged 26 and 13. The younger child, Kasey, was still a dependent student. Both Garry and Ross were in good health, as were their children, and without special needs.

The application failed.  His Honour dismissed the application and said in the penultimate paragraph of his reasons for judgment:

“I can see no reason in justice why the Court should intervene here to abridge the Testator’s “freedom of testation”. In my view the applicant has failed to demonstrate that the jurisdiction of the Court is enlivened.”34

This followed a direct reference to what Young J had said in Walker v Walker35

“… Although it is not much mentioned in recent decisions, the older authorities often mention the fact that the Act did not intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally…”

The net value of the estate was assed at about $2.7million, the principal asset being a freehold grazing property of some 3000 acres valued at just under $ 2 million. It was part of an aggregation of three properties on which the deceased had conducted grazing operations with his brother Keith (until his death in 20030 and with Ross and his wife Marcia.

[12] The remaining assets of the estate were cash of approximately $141,000, livestock (around $156,000), shares in AMP, and a one-third interest in a grazing partnership conducted between Ross, his wife Marcia and the testator, with an estimated value of $490,000.

The testator’s will provided that, apart from a small legacy to a named beneficiary, his estate was to go to his son Ross. No provision was made for Garry.

Since he left school when he was 15, Ross lived and worked full time on the properties. Ross and his wife Marcia lived on the principal grazing property “Spotswood” for their entire married lives from March 1989 and only 200m or so from the testator. He did not remarry. Marcia did all his shopping for him and he ate with Ross’ family most nights. There was no contest that the testator became very difficult to manage in his later years. His behavior became erratic. Quite apart from the contribution made to the conservation and preservation of the family grazing properties His Honour found that Ross and his wife had made an obvious significant contribution to the testator’s welfare and happiness during his lifetime and under trying circumstances.

Until he was 23 the applicant Garry had the same relationship with the testator as did Ross. Both worked on the property as children for modest payment. Garry was sent off to Agricultural College with the intent that he return and work on the property whereas Ross stayed. As adults they were paid an award wage together with benefits such as fuel, free meat and milk, accommodation, and groceries to be charged to the testators’ account up to $30 per week.

Garry had accepted that he would work in the family business. The intention was that the aggregation would be built up by their joint efforts to enable their two families to live off the properties and that they would one day inherit them. When Garry and Wendy married they lived and worked on the property.

A property located at Dingo was bought in Garry and Wendy’s names for $164,000 in June 1984 financed partly by a loan and partly by the testator putting monies into the purchase from the family trust ($8,315), which he controlled, and a substantial sum that he had inherited from his own mother’s estate ($63,000). Ross contributed $5,000 but Gary none. 

When  the testator and his wife separated in April 1984. Garry thought that his father treated his mother inappropriately. The mother brought property settlement proceedings and the testator needed to raise money Garry received a letter from his father’s solicitors demanding repayment of a “loan” said to be owing in respect of the purchase of the property at Dingo.

Whether the demand was to put the testator in funds, or whether the testator perceived Garry was aligning himself with his mother in the family dispute, or whether the testator genuinely thought that an amount was owing from Garry was unresolved but within days of receiving the letter Garry had left the family property never to return. Garry claims in his evidence that when he challenged his father about the alleged loan he was threatened with violence.

Garry intervened in the family law proceedings seeking both a declaration that he did not owe any monies and an order that the testator pay him $150,000 a claim apparently based on the assertion that he had “contributed substantially to the production of income and particularly to the improvements to the properties, and to stock,  plant and equipment.

That dispute was resolved by a Deed dated 19 November 1986 between the testator, his wife and Garry. So far as Garry was concerned the Deed recorded the fact of the dispute about the existence of the loan and that the parties agreed that each “severally releases his or her rights to make an application for provision or further provision under the Testator Family Maintenance provisions of the Succession Act 1981” acknowledging that the terms agreed were to their respective advantages. 

The respondent contended that whilst the clause was void in so far as it purported to preclude the applicant from pursuing his entitlements under the Succession Act 1981 it nonetheless informed the Court as to the intention behind the settlement reached — namely that Garry was severing all ties and claims on his father.

There was no communication of any sort between Garry and his family and the testator until 2007 — a period of 22 years since Garry had left the property. In 2007 the applicant commenced to visit the testator in a nursing home having been advised by Ross that their father had suffered from dementia and could no longer stay on the property but there was uncontested evidence that the testator lacked the capacity to form or maintain relationships from January 2007.

The testator had sworn a declaration in August 1992, explaining his decision to make no provision for Garry in his will prepared then, where he said that he considered that in the Family Court proceedings Garry had obtained benefits that “far exceeded” his then entitlement and that the manner in which the proceedings had been conducted against him by his wife and Garry was “malicious, vexatious and partly fraudulent”.  He had not included Garry in any of his three wills, the last being made on 20 October 2005. No meaningful reconciliation took place. While he preserved his faculties the testator displayed no wish or intention that he be reconciled with Garry, nor did Garry attempt to be reconciled with the testator.

The applicant’s financial situation

At the time of the trial, the applicant worked as a drag line operator at a mine. He earned about $150,000 p a before tax. His wife worked in the Public Service earning $1250 per fortnight. The applicant estimated his net asset position to be about $740,000 but because of the separation from Wendy, he had halved his interest in their jointly owned assets on the assumption that there would be a division of property. The respondent argued that the  separation may not necessarily have been permanent pointing out that despite 20 months passing since their separation neither party had taken any step towards resolving property issues, even to the extent of consulting a lawyer. They maintained their joint interest in a partnership in a small herd of cattle, they remained amicable and Wendy retained access to a joint bank account and credit card. They also had a cane farm valued at $960,000 on the market at $1.4M.

His honour determined that the applicant’s net asset position in the sense of assets to which he had access, at the time of death, was in the order of $1.5 million and the fact that there was  no evidence that, at the date of the testator’s death, the relationship was likely to come to an end was some serious relevance as the jurisdictional question was to be decided as at the date of death with the notional “wise and just testator” bringing into account all relevant facts and those that are within “the range of reasonable foresight.

Ross’ Financial Position

Ross and Marcia were comfortably off with a net asset position of about $9M. The main property worth between $6.3M and $7.3M was gifted to them by the testator during his lifetime.   They also had two thirds interest in the grazing partnership valued at between about $600,000 and $1M. They also owned a news agency worth more than $1M.  Their businesses were profitable.

Contribution to the Estate

Garry made no contribution to the estate at least since he left in 1985. To that time his contribution equalled his brother’s although Garry went away to College for two years and Ross didn’t. In 1985, at age 23, Garry took with him, unencumbered, the property at Dingo to which he had made no financial contribution. Ross on the other hand made a substantial contribution. He’d lived and worked on the properties all of his life as a third generation of his family to work that land.

The Jurisdictional Issue

So, to the question ‘was “inadequate provision” made for the “proper maintenance and support” of Garry?   In accordance with Singer His Honour had to have regard to  Garry’s financial position, the size and nature of the estate, the totality of the relationship between Garry and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his bounty.

His honour agreed with the respondent’s argument that each of those matters, save for the size of the estate, were against and not for the applicant.  The size of the deceased’s estate was not insubstantial, the nature of it such that it formed part of the agricultural enterprise which the deceased conducted with Ross since Garry’s departure 26 years before. Arguably, there was no relationship between the Deceased and Garry whereas the relationship between the deceased and Ross, as his sole beneficiary, was one of years of mutual support. The deceased and Garry had clearly agreed to permanently separate their personal and commercial affairs. The deceased was clear as to why he was making no provision for Garry and Ross and Marcia had made substantial contributions to the build-up of the estate; Garry had made none.

For the applicant, two things were stressed in argument – firstly, the implications of the word “proper” in the phrase “proper maintenance and support ” and secondly, that due regard ought to be had to the concept of the testator having a duty to bear in mind the “advancement of life” of the applicant.

His Honour referred to the judgment of Callinan and Heydon JJ in Vigolo:36

“The use of the word “proper” means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the “station in life” of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.”

His Honour said that his statement that Garry is not in need is not intended by me to be an attempt to reinstate the view of the law espoused by Fullager J in Re Sinnott37 and said there was no requirement in the legislation that an adult son show some special need or claim before becoming eligible to apply; but that “that  is not the same as saying that the fact that an applicant is an adult son and well able to care for and provide for himself is irrelevant.

McMeekin J ordered the applicant to pay the respondent’s costs.

(Continued in Part 2)

 

Footnotes

1. Max West, ‘The Theory of Inheritance Tax’ (1893) 8(3) Political Science Quarterly 426, 429.
2. For example, see the excellent paper: Every Player Wins a Prize? Family Provision Applications and bequests to Charity, M McGregor-Lowndes and F Hannah,  Australian Centre for Philanthropy and Nonprofit Studies, QUT, 2008
3. In the period between 1290 and 1540. See generally: William F. Fratcher, ‘Protection of the Family against Disinheritance in American Law’ (1965) 14(1) The International and Comparative Law Quarterly 293, 294
4. Ibid. The land which could be left elsewhere was two-thirds of land held by military tenure and all land held by socage. After 1660, all military tenure was converted to socage, so that all land could be left away from the heir by will.
5. Forced shares for widows could be reduced by jointure or settlement, both of which were commonly used, and by advancements for children.
6. Magna Carta Ch 26: ‘If anyone holding of us a lay fief shall die, and our sheriff or bailiff shall exhibit our letters patent of summons for a debt which the deceased owed us, it shall be lawful for our sheriff or bailiff to attach and enroll the chattels of the deceased, found upon the lay fief, to the value of that debt, at the sight of law worthy men, provided always that nothing whatever be thence removed until the debt which is evident shall be fully paid to us; and the residue shall be left to the executors to fulfill the will of the deceased; and if there be nothing due from him to us, all the chattels shall go to the deceased, saving to his wife and children their reasonable shares.’
7. The only remaining area where these applied after 1696 was in London.
8. James Mackintosh, ‘Limitations on Free Testamentary Disposition in the British Empire’ (1930) 12(1) Journal of Comparative Legislation and International Law (3rd Series) 13, 13.
9. any person who was being wholly or substantially maintained or supported by a deceased  (other than for full valuable consideration) at the time of the person’s death being a parent of that deceased person; or the parent of a surviving child under the age of 18 years of that deceased person; or a person under the age of 18 years: [s.40]
10. (1957) 97 CLR 566 at 576
11. (1994) 181 CLR 201-209
12. Grey-v-Harrison [1997] 2VR 359 per Callaway JA at 366
13. In Blair v Blair (2002) VSC 95 per Harper J
14. (2002) VSC 202
15. Re Mackinnon (2002) Tas SC 3
16. Vigolo v Bostin (2001) WASC 335
17. (2001) QCA 465
18. Firstly, whether the disposition of the estate by the deceased was not such as to make adequate provision for the proper maintenance and support of, in this instance, the deceased’s adult son.  This is a jurisdictional question which is determined at the date of death of the deceased.  Secondly, if the first question is answered in the affirmative, the court in exercising its discretion to make such a provision as it thinks fit, must take into account the relevant facts existing at the time of making the order. 
19. Practice Direction No 8/2001, Clause 7(a).
20. Vigolo v Bostin (2005) 221 CLR 191@ 204 [25]
21. (1910) 29 NZLR 959, at 969-975.
22. (1948) VLR 279, at 280.
23. (1961-62) 107 CLR 9, at 18.
24. See also on the same point: McCosker v McCosker (1957) 97 CLR 566; Stott v Cook (1960) 33 A.J.L.R. 447; Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134.
25. (1979) 143 CLR 134 at 147.
26. Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37; Wilson v Wilson (1993) unreported judgment, Supreme Court of Western Australia; Banks v Seemann [2008] QSC 202.
27. Re The Will of Mayne, BC 9202415
28. In reliance upon In re Green (Deceased) (1951) NZLR 135 and especially on the passage in the judgment of the Court of Appeal at page 141. The reference in that case was to Section 33(2) of the New Zealand legislation which finds its equivalent in the Queensland Act in Section 41(2).
29. (1966) VR 404 at 415.
30. Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1978-9) 143 CLR 134 per Gibbs J at pages pp. 146-8.
31. Supported by the view of Holland J in Kleinig v Neal (No.2) (1981) 2 NSWLR 533 at 543.
32. In re Sinnott (1948) VLR 279 at 280; Hughes v National Trustees, Executors and Agency Company of Australia Limited (1979) 143 CLR 134 per Gibbs J; Anderson v Tebonera (1990) VR 527 at 539 per Ormiston J; and see judgement of Pincus JA in Mayne
33. [2011] QSC 385
34. Paragraph [78]
35. Unreported, NSWSC, 17 May 1996 at 31
36. (2005) 221 CLR 191 at [114]
37. [1948] VLR 279 at280 where his Honour, Fullager J, said, “No special principle is to be applied in the case of an adult son. But the approach of the Court must be different … an adult son is, I think, prima facie able to „maintain and support‟ himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act.”

The testator died in 2003 at the age of eighty three. He was survived by his defacto widow of fifteen (15) years Margaret Jones, and three (3) adult children of his first marriage — a daughter Margaret (aged 51), and two (2) sons Simon (aged 53) and Christopher (52).

The estate was worth approximately $1,474,967.38 at the time of trial — largish but not so huge by today’s standards”.39

The Will was subject to contested probate proceedings brought by Simon & Christopher alleging lack of testamentary capacity and undue influence.   Those claims were abandoned after about a year.

The Will provided for Simon and Christopher Oswell to receive a legacy of $100,000 each, and for the Applicant to receive a life estate in that same amount.   An education fund of approximately $800,000 for the benefit of the testator’s step grandson Lewis Jones was provided for, with this fund vesting on Lewis attaining the age of 25, or on his earlier death.   Lewis also received the remainder interest in the gift of income to Margaret Oswell.   The residue of the estate passed to the testator’s defacto widow, Margaret Jones.

The Applicant’s claim

The Applicant was fifty one (51) years of age at the time of the hearing. 

She was severely disabled, having been born with cerebral palsy, and suffering other significant health problems. She was almost totally physically incapacitated, and was wholly dependent on others for care. She was of normal intelligence, and had no mental disabilities. It was held that she was likely to have less than the average (thirty year) life expectancy due to her condition. 

The Applicant was in receipt of a Disability Support Pension and other government benefits, and had no other income or assets of any significance. She lived in state housing, which she would lose if her assets exceeded a low-moderate amount. Her modest living expenses exceeded her income.

Chesterman J found it easy to conclude that in a large estate a gift of the income on $100,000 to a child in the circumstances of the Applicant was clearly inadequate provision, and that was common ground between the parties at the hearing. The analysis then turned to the “second limb” set out in Singer v Berghouse,40 being the question of what provision should be made for the Applicant from the estate in all of the circumstances.

The competing claims of Margaret Jones and Lewis Jones were said to have significant importance, despite neither of those persons being financially needy, and Lewis Jones being outside of the class of persons for whom the testator had an obligation to provide. It was held that the testator had discharged his moral obligations to his widow (who had no real financial needs) by making the significant gifts to her favoured grandson. This indirect provision was seen as something that should be given effect to as far as possible.

The relevance of social security benefits

A question arose as to whether “the relief should be structured so that she (the Applicant) continues to enjoy the benefits of pension payments and ancillary benefits, or whether she should be given a lump sum, the whole or a substantial part of the estate, with the consequence that she will lose those benefits” .

Chesterman J considered some relevant New South Wales authorities on the issue of how pension entitlements should be taken into account, and concluded that “…the availability of…pensions and social benefits is a circumstance which should be regarded, and particularly in small estates it may be appropriate to leave an applicant wholly or partly dependent on them or to mould the provision made so that their availability is observed in whole or in part.”41

Despite the present estate being a large estate, there being a lack of competing claims having financial need, and against judicial warnings that it is for the testator to make proper provision rather than the State, Chesterman J concluded that the estate was not sufficiently large to make adequate provision for the Applicant without regard to the pension and other social security benefits being available. 

His Honour then went on to fashion provision for the Applicant in a way that would retain her social security and related benefits by incorporating a Special Disability Trust into the testator’s Will.

Creation of a Special Disability Trust for the Applicant

A Special Disability Trust (“SDT”) is a form of discretionary trust settled in the usual way (with limitations), or created by the operation of a Will. It can only have one (1) beneficiary (other than on vesting), and that beneficiary must have a severe disability that meets certain criteria. The key difference between a SDT and other types of discretionary trusts is that the capital and income of a SDT can only be used to provide for the beneficiary’s “reasonable care and accommodation needs”. Care needs must arise as a direct result of the person’s disability. SDTs are therefore somewhat inflexible.

The key advantages of using a SDT are that assets of up to $500,000 (in addition to the home of the beneficiary) can be held by the SDT without those assets being included in the beneficiary’s means test for social security purposes. There are also gifting concessions for certain family members putting assets into a SDT.

A SDT was found to be desirable in the circumstances as, unlike any other form of testamentary discretionary trust or life estate, its assets would not deprive the Applicant of her social security and related entitlements.

His Honour concluded that he was unable to limit the Trust to one of income only, and so the Applicant could potentially also receive distributions of capital.   It is noteworthy that this decision was left to the discretion of the Trustees appointed to the fund, who were two (2) solicitors of the firm Biggs & Biggs, the solicitors for the Applicant, rather than a trustee institution.

A fund of $500,000 was settled on the Trust, which is the maximum amount allowable for a full means test concession to be maintained.

The provision made for the Applicant

Interestingly, the provision made for the Applicant (apart from a $10,000 legacy) was limited to a gift of income, a right of residence ($450,000 for a home to be purchased and held in trust), and (in relation to the SDT only) a mere expectancy of capital distributions. The Applicant effectively received the benefit of estate assets worth $1,030,000, the capital of those assets falling back into the estate after the Applicant’s life. 

As noted above, capital distributions from the SDT can only be made for housing needs (which were otherwise provided for), and needs required because of the Applicant’s disabilities. In effect, the Applicant was left to fund her “wants” from her pension.

While it was argued the applicant was entitled to a large capital sum, given that she was relatively young, suffered no mental disability, and there was capital in the estate available to give to her it became obvious and strenuously argued by the respondent there was good reason to   preserve the gifts to Margaret Jones and her grandson Lewis Jones.

The provision made was seen as addressing the Applicant’s essential care, medical and accommodation needs, without going beyond “needs” to also provide for the Applicant’s “wants”. 

Chesterman J commented that “the Applicant, it appears, has chosen to litigate expensively” (her costs exceeded $220,000).   She was also criticised for overstating her “needs”, and implicitly the costs involved in proving those needs were not accepted as reasonable.   The hearing only lasted for two (2) days.

Notwithstanding these apparent criticisms, all parties received their costs from the estate on an indemnity basis (it appears) without the need for any costs argument.   No consideration was given to capping the Applicant’s costs.   The costs decision could be described as generous to all parties and left the residuary beneficiary out of pocket.

The conclusion reached by the Court was that this form of indirect competing claim could legitimately be taken into account, and in some very real respects it counted against the Applicant’s claim even though the step grandson was never financially dependent on the will maker, and in fact had well-off parents and grandmother from whom he received support – perhaps  a clear statement from a Court that indirect moral claims can be given significant weight.

It is interesting to note that in 1997 the New Zealand Law Commission pointed to anomalies in the Family Provision Act 1955 stating that ‘Claims by adult children under the Family Provision Act 1955 are often made on the basis not of need but on the basis that the will-maker breached an undefined moral duty and that such a regime was indefensible because will-makers cannot determine and comply with its requirements in advance, and because it may disregard moral imperatives of the will-maker that are not shared by whichever judge is called upon to decide the claim.42

Similarly, the Queensland Law Reform Commission, as the lead agency in the Australia-wide review of succession law, also recommended that adult children not be able to make a claim for provision, or increased provision. In clause 6 of a proposed model legislation, the eligibility for claim was to be limited to the wife or husband, a de facto partner (as defined in each jurisdiction in Australia), and non-adult children. Clause 7 additionally suggested  permission of a claim by a person to whom a deceased person owed a responsibility to provide maintenance, education or advancement in life the matters that were  to be taken into account,43 were listed.

But, things haven’t changed to that effect.

Step children

The usual issue in these cases is family property which has passed by joint tenancy survivorship to the surviving step-parent. On the death of the step-parent, the question the court has to consider is whether the step-parent gained an advantage by the survivorship which should now be passed to the stepchild, even if an adult.

In Powell v Monteath,44 this issue was resolved by a consideration of the surrounding circumstances. The applicant stepson was in relatively necessitous circumstances and the court’s decision that he had been left without adequate maintenance and support was arrived at despite the fact that the claimant was 63 years old.

In Freeman v Jacques,45 the applicants were seven stepchildren, aged between 53 and 61, seeking provision from their deceased stepmother’s estate. The children had never been in a familial relationship with the deceased, and had already benefited from their father’s estate. The testatrix’s estate of $1 million was left to a friend and carer of 30 years. At first instance, only two of the seven stepchildren had been awarded provision, on the basis of their necessitous circumstances. This was upheld unanimously on appeal.46

Keane JA said:

‘The appellants’ contention is that the learned trial judge erroneously applied a test of ‘extreme need’ in order to determine the jurisdictional issue… In my respectful opinion, the appellants’ contention in this regard seeks to put an impermissible gloss on the reasons of the learned primary judge. Her Honour was plainly not applying a test of ‘extreme need’ in relation to the determination of the jurisdictional issue. Rather, her Honour was making the point that necessitous circumstances would be necessary to give rise to a moral claim on the bounty of a stepmother, who has had no familial relationship at all with the claimant, where the claimant has already received a distribution from the estate of his or her natural parent, and where the estate of the stepmother substantially reflects her contribution to the joint wealth of herself and her deceased husband…’

Charities

When claims by adult children are being discussed in these circumstances, something needs to said about the competing claims of charities. Chesterman J (as he was then) in a paper entitled “Does morality have a place in applications for family provision brought pursuant to S 41 of the Succession Act 1981?” said this:

“It has seemed to me on occasions that the authority of In Re Sinnot has not been given proper recognition in cases where the competing claims are those of an adult child and a charity. It appears that there is an implicit assumption that the charity had no moral claim on the testator who correspondingly had no moral duty to benefit it. The contest is regarded as one between a claimant who prima facie had a moral claim on the testator, and a beneficiary who did not.”

In that paper, His Honour took the opportunity to give his personal views on claims under s 41 by adult children who are not in necessitous circumstances where the estate, or much of it, had been left to charity.  He suggested that if cases were determined in accordance with established, orthodox, legal principle testamentary gifts to charities would not be disturbed on an application by an adult child who cannot demonstrate some special need or special moral claim.

The suggestion was that attitudes have changed, or are changing, and that the courts ought to consider that there are or may well be moral duties on testators to benefit charities because of the importance of charities to the social fabric of our community. He also suggested that testators who are responsible citizens could not be ignorant of the importance of charities and their value to society and that it cannot be said that there is no moral duty to provide them with financial support. The natural (or moral) tendency to advance children by testamentary but  a testator’s desire to discharge this moral duty should not  be ignored or denigrated by an unquestioning assumption that ‘family comes first’. In his view it may, or may not, depending upon the testator’s assessment of where his or her duty lies. In conclusion

You could be forgiven for thinking I would analyse vast numbers of cases on competing claims between adult children as applicants and other beneficiaries.  To do so would cause a postponement of Christmas. The simple fact is that each case will depend on its own facts.  I have chosen a few because they are interesting and show the nuances which sometimes take them out of the ordinary. 

Although we have seen an increase in the number of applications by spouses other than those legally married, widowers and adult children, including stepchildren it is simply a reflection of changes in standards, the attitude of the community and an increasing number of second and subsequent marriages, or relationships that result in cohabitation on a genuine domestic basis. 

It is fair to say, also, I think, that it is significant that there have been increases in longevity, and wealth, within the community at large. Fewer cases are going to trial because of requirements for compliance with the practice direction requiring alternative dispute resolution.   Despite all of this, it would appear that the basic principles are fairly well settled.  We have seen though that they are applied in differing ways by what can perhaps be described as the varying attitudes or evaluative and sometimes subjective exercise of discretion of our judiciary.

What remains clear is that the arrangement of one’s affairs with the intention of avoiding such claims should be done with considerable care, with the willingness of the courts to uphold the operation of the statutes never far from the advisor’s mind.

Doug Murphy S.C.

Footnotes

38. [2007] QSC 384

39. as described by Chesterman J at [51].

40. Singer v Berghouse (1994) 181 CLR 201 at 208

41. Whitmont v Lloyd (Supreme Court of NSW Unreported 31/7/995) per Bryson J at 16, cited with approval in King  v Foster (NSWCA Unreported CA 40372/95)

42. Report 39: Succession Law: A Succession (Adjustment)Act: modernising the law on sharing property on death (August 1997)

43. These matters are modelled on the current Victorian legislation, the Administration and Probate Act 1958 (Vic), section 91(4) (e)-(p)

44. [2006] QSC 24

45. [2005] QCA 423

46. [2005] QCA 423

47. at paragraphs [27] and [28

Copyright © These materials are subject to copyright which is retained by the author. No part may be reproduced, adapted or communicated without consent except as permitted under applicable copyright law.

Disclaimer This seminar paper is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. Readers should not act on the basis of any matter contained in this seminar paper without first obtaining their own professional advice.

Lord Walker, Dr McPherson, and Colleagues,

The difficult questions of timing brilliantly surveyed in Lord Walker’s paper are relatively novel issues — at least in the time frames of the common law. That is because they are largely a by-product of the imperial march of negligence into a previously foreign field, as well as the later enactment of the Trade Practices Act.1 I will focus my comment on the cause of action in negligence.

The common law as it had developed before the decision in Hedley Byrne & Co Ltd v Heller & Partners Ltd,2 struck a balance between competing interests whereby a defendant’s interest in the vigorous pursuit of his or her business was not to be subordinated to a plaintiff’s interest in not being harmed by the defendant’s activities, save where the defendant had promised for consideration to take care not to do so or acted by unlawful means intentionally to harm the plaintiff. Save for these cases, a defendant could act quite lawfully while taking no care as to his or her neighbour’s financial interests.

These novel issues arise in a field of discourse which is still occupied by causes of action in contract and the economic torts. In this field, these latter causes of action held exclusive sway until only a few decades ago.

The causes of action in contract and the economic torts were tailor made to regulate the conduct of economic activity and to protect financial interests as distinct from interests in personal integrity or real or personal property.

By the economic torts, I mean the causes of action called deceit, duress, detinue, conversion, injurious falsehood, intimidation, conspiracy, inducing breach of contract and interference with trade.

All but the last of these tortious causes of action were well-established before the decision of Donoghue v Stevenson3 in 1932, and well before negligence established its claims to govern recovery for purely economic loss in the mid-1960s.

The success enjoyed by the cause of action in negligence as a source of compensation for economic loss has not been thought to mean that the economic torts have been rendered a dead letter. But the co-existence of the law of contract and of the economic torts and the tort of negligence in the same field, should alert us to a risk of incoherence in the application of these different theories of liability.

For example, is it not odd that in a Hedley Byrne type situation (without the crucial disclaimer of course) a cause of action in negligence, to recover loss suffered because of the defendant’s failure to discharge a responsibility it has assumed to exercise with reasonable care, should survive longer than a cause of action for breach of contract, bearing in mind that time runs in contract from the date of breach? It does seem to be odd that the plaintiff in such a case, who has not given consideration for the defendant’s assumption of responsibility, should be in a better position than a plaintiff who has.

And s 46 of the Competition and Consumer Act4 recognises that competition intended to harm a competitor may be lawful.

In the 1960s and 1970s, when negligence entered the field of regulation of economic interests, that development was driven by the unifying intuition that justice requires that all interests, of whatever kind, should be entitled to protection from unreasonable conduct which causes reasonably foreseeable damage. The force of that idea proved to be irresistible to the Courts in England, Australia, New Zealand and Canada.

But as Lord Walker’s paper demonstrates, the protection of economic interests by the action in negligence has thrown up special challenges for the principled development of the law. That these challenges have proved to be so knotty might be thought to suggest that economic interests are indeed different, in ways that matter, from interests in property and personal integrity.

In this field, the central but indeterminate concept of reasonable foreseeability of harm to others, sheds little light on the problems of timing discussed by Lord Walker.

His Lordship identifies the distinction, drawn in the English and Australian cases between “a real contingency, [and]… a slim chance of some unexpected outcome”, and his Lordship describes the limits of the application of the “ill-fitting mould of the analogy of damaged goods”. The concept of reasonable foreseeability of harm to others affords no illumination either to the distinction or the description.

In contrast, we all know that a cause of action in contract is complete — and that time begins to run — from the moment of breach. And with the economic torts, time begins to run from the moment of the intentional infliction of harm on the plaintiff. In these cases the insidious emergence of damage over time does not present as a problem.

And the problem of the emergence of loss over time can be quite acute because the emergence of loss may depend on the vagaries of the market and the response of the plaintiff to them.

One might speculate that the difficulties of analysis involved in distinguishing a “real contingency” from “a slim chance of an unexpected outcome” referred to by Lord Walker, are symptomatic of the underlying indeterminacy of the concept of reasonable foreseeability of harm. This indeterminacy, unresolved by closer guidance in point of principle, seems to lie at the root of the difficulties in assigning, as between plaintiff and defendant, ongoing responsibility for a loss, the occurrence and the extent of which, may depend upon market movements and the adequacy of the plaintiff’s responses to those movements.

Whether or not the difficulties of timing discussed by Lord Walker should be seen as symptoms of the loss of coherence of which I spoke earlier, it can, I suggest, fairly be said that they reflect the broad scope for policy driven — rather than principled — decision making which is afforded by the open-textured conceptual framework built on the notion of reasonable foreseeability of harm.

His Lordship has identified the tendency of the English decisions to fix upon an earlier date for the accrual of a complete cause of action than the Australian decisions. It appears that this difference is explicable as reflecting a different attitude, as a matter of judicial policy rather than legal principle, to the desirability of terminating the defendant’s exposure to responsibility for the plaintiff’s loss.

The earlier a cause of action accrues, the sooner the limitation period expires and the sooner the defendant ceases to be responsible for the plaintiff’s loss. It seems that at a policy level the English (and American) courts, more in sympathy with the mercantile values of autonomy and self-reliance in commerce than Australian courts, are less disposed to keep open a remedy for a plaintiff whose only loss is economic. The longer the remedy is kept open for the plaintiff, the greater the defendant’s exposure to the burden of responsibility for economic loss against which the defendant, ex hypothesi, has not been paid to protect the plaintiff.

A clearer manifestation of a loss of coherence is afforded by cases like Bryan v Maloney.5 Lord Walker mentioned, but did not analyse, this decision. Emboldened by the High Court’s subsequent decision in Woolcock Street Investments Pty Ltd v CDG Pty Ltd,6 I will not be so polite.

In Bryan v Maloney a distinction was drawn between domestic and commercial purchases. This distinction is quite unstable: for example, does liability come and go as each purchaser changes his or her intended use of a building?7

Apparently, the Court considered that some such a distinction was necessary in order to vindicate the interests of a plaintiff purchaser, while at the same time putting put a brake on what would otherwise be a potentially limitless succession of liabilities to purchasers whose loss consists solely in not getting value for money at the time of their purchase in circumstances where the price paid did not reflect a warranty as to quality.

Putting these theoretical matters to one side, and turning to practical matters, one might suggest that the self-imposed pressure upon the judiciary to respond sympathetically to ongoing demands of the kind which drew negligence into the field of regulating economic activity, might be reduced by recognising that the courts are not the only institution of the state committed to ensuring that consumers and traders receive value for money and should be protected from heedless conduct where it is just and reasonable that they should.

Consumer protection and fair trading legislation and legislation based insurance schemes, for example those established to protect consumers who engage builders to build dwelling houses, come to mind.

Legislatures have demonstrated a willingness actively to address policy issues concerning consumer protection against shoddy building practices. An active legislature can ensure that consumers are protected against the sort of problems suffered by the plaintiff in Bryan v Maloney in a more nuanced and comprehensive way than judge made rules.

It can also ensure that the commercial community, and the law of tort, are protected against decisions like Bryan v Maloney.

The Honourable Chief Justice Keane

 

Footnotes

⃰ Commentary on address by Lord Walker of Gestingthorpe at Current Legal Issues Seminar Series presented by the Bar Association of Qld, UQ and QUT on 13 September 2012.

† Chief Justice of the Federal Court of Australia

1. Trade Practices Act 1974 (Cth).

2. [1964] AC 465 (Hedley Byrne).

3. [1932] AC 562.

4. Competition and Consumer Act 2010 (Cth).

5. (1995) 182 CLR 609.

6. (2003) 216 CLR 515 esp at [16]-[18]. See also Owners Corporation Strata Plan 72535 v Brookfield

[2012] NSWSC 712.

7. Zumpano v Montagnese (1997) 2 VR 525.

The most stressful trials that any of us conduct are cases involving allegations of sexual offending against children and murder trials. In the latter you are often appearing for ordinary people who find themselves facing life imprisonment for extraordinary events, never having been in trouble with the law previously. In the former you appear for people accused of conduct involving an allegation of an offence, that ruins lives if convicted, where you have to cross-examine a complainant who is vulnerable, without taking advantage of that vulnerability, whilst restricted by rules that don’t apply to most criminal trials. If the client is convicted they face almost inevitable imprisonment under the most difficult conditions, with personal and financial ruin, marked for life as being unworthy of the trust of the community. These trials are about to become even more difficult with the advent of the Federal Royal Commission and the undoubted publicity that will accompany it.

Sexual assault trials really comprise two distinct but related types of offences:

(a) Allegations of sexual abuse of children — there is no consent in issue;

(b) Sexual assault of adults — consent may be, and often is, an issue.

Each of the types of trials has different rules of evidence, although there is some overlap.

Gathering Evidence and Material

Usually in these types of cases (except where the allegations are of assault by a stranger), the pre-existing relationship between the complainant and the accused will be a matter of some evidentiary consequence. At an early stage it is important to seek the following from your client as matters which may or may not go to the state of a pre-existing relationship:

(1) Photographs, letters and cards, together with any envelopes relating thereto;

(2) Emails between the accused and the complainant or by the complainant about the accused;

(3) Depending on the age of the complainant, any material which can be obtained from social media sites.

At an early stage, try to identify times and places when things were said to have occurred or must have occurred, even when the matters are old, as they may be the source of an alibi, or alibi like evidence. Often it is only possible to fix the time or place of a single allegation out of a number said to have occurred, but it can be used to highlight the danger of accepting the evidence of the complainant. At an early stage, perhaps by seeking of particulars or alternatively cross-examination at a committal, identify dates and places when or where offences were said to have occurred.

At an early stage try to establish whether or not there is any basis for a committal cross-examination of the complainant or of any of the witnesses who give support to the complainant, including evidence of preliminary complaint.

Part of the effectiveness of cross-examination is based on the collection of evidence to be used to discredit the complainant’s evidence. This means the gathering of as much material as is available, going in particular to the relationship between the complainant and the accused, if in fact such a relationship exists. In sexual offence cases, putting aside the “stranger cases” where there is no prior relationship, it is important to look for evidence to show inconsistency between the reality of a pre-existing relationship and the one in which the complainant now presents it.

When looking at social media, one is looking for prior statements which are inconsistent with the present testimony of a complainant or supporting witness or which create a view inconsistent with the truth of the complainant’s claim. Here, in addition to social media sites, one should look closely at police notes of conversations with the complainant and other witnesses, check with the Crown re: conferences had with the witness, since the witness either last gave evidence or last gave a statement, including notes of those conferences. This primarily will be done by Instructing Solicitors, but counsel should have real input into this if possible. It is wise to have an early conference with the client so that this sort of material can be sought at an early stage.

Limits on Cross-Examination

There are two types of limitations imposed on cross-examination, particularly of children. One of the limitations is as to the circumstances of, and the opportunity for, cross-examination, the other is as to content. With regard to child witnesses, s.9E of the Evidence Act which sets out principles for dealing with child witnesses, sets the basic ground rules for their cross-examination, although to a significant degree they represent no more than an application of common sense and the requirement to treat the child with the degree of dignity and respect that an adult witness would be entitled to expect.

Part 2, Divisions 4 (Special witnesses) and 4A (Affected children) are the principal sources of requirements limiting the opportunity to cross-examine special witnesses and in particular child witnesses. Division 4 controls the physical circumstances in which a person declared to be a special witness is to give evidence, as does 4A with respect to children.

Division 4A is far more proscriptive in respect of children than is Division 4 in respect of special witnesses. A “special witness” is defined in s.21A(1). A “child” for the purposes of the legislation is defined in s.21AD. Division 4A deals in some detail with the giving of evidence by a child witness in committal proceedings and in trials. In s.21A(8) and s.21AW(2), instructions to be given to the jury about the way in which the evidence is given are identified. In each case the instruction must be given by the trial judge and the history of these matters in the appellate court is that a failure to do so is almost inevitably fatal to a conviction that has been obtained.

In my view, whenever preparing for a trial involving sexual offences, especially a trial involving a child complainant, it is critical to have regard to the provisions of Division 4A of Part 2 of the Evidence Act.

Limitations on Cross-Examination of Complainants

­These limitations are principally found in the Criminal Law Sexual Offences Act 1978 and in particular s.4. This is an Act that, in the interests of encouraging complaints has severely restricted one aspect of cross-examination. In many cases such restriction is justified — for example one extreme — a complainant who is kidnapped off the street and raped — where cross-examination as to prior sexual conduct is impossible to justify, both as a responsible practitioner and as a sensible advocate. On the other hand where a complainant is raped in circumstances where consent is a live issue, there are many circumstances where these limitations can create unfairness to the accused.

Section 4 identifies the type of evidence and cross-examination which is:

(a) Inadmissible in any circumstances; and

(b) Admissible only with the leave of the Court.

It identifies the circumstances required to justify the granting of leave. It is a requirement that the Court be satisfied that the evidence sought to be elicited or to be led has substantial relevance of the facts in issue or is a proper matter for cross-examination as to credit. Although there are now a significant number of appellate decisions on rulings made at trial pursuant to s.4, there is no decision that I am aware of that identifies a path to be followed to reaching a decision. This is probably to be welcomed, given that the circumstances of these trials are so varied that it is impossible to contemplate a set of rules that in some way narrows the considerations required to be given by a trial judge pursuant to this section.

A couple of things however need to be said:

1. When making an application to cross-examine, it is wise to do so in the absence of the complainant. Section 4(6) provides that the complainant can be required to leave the Court at the request of the accused.

2. When making an application to cross-examine, it is important to identify in some detail, both the nature of the issues sought to be put to the complainant and, if evidence is to be called, as to the evidence to be called, as well as explaining with some precision, why it is that leave is sought. This is important, not only to assist the trial judge, but also if a refusal becomes the subject of an appeal – R. v Muller (1996) 1 Qd R 74 at 75 lines 20 — 31.

The variety of circumstances which can be thrown up by this provision is to be seen by reference to a number of the decisions, for example, R. v MAG [2004] QCA 397; R. v Tribe [2001] QCA 206; Bull v The Queen [2000] 171 ALR 13; R v Willersdorf [2001] QCA 183; R. v Starkey (1988) 2 Qd R 294; R v Richardson (1989) 1 Qd R 583; R. v Kochnieff (1983) 33 A Crim R 1.

In circumstances where it will be necessary to make such an application, it’s a good idea to read through at least the factual basis and the Court’s analysis in reaching the decisions that it does. In some of these cases the appeals are successful, in others they are unsuccessful. But a review of the thinking of the Court is often helpful in the approach one takes to making a successful application under this provision.

There is one further limitation on cross-examination in these sorts of offences and that is the practical limitation that one needs to impose on oneself. In this sort of trial, a jury is, by and large, likely to be at least initially sympathetic to a complainant, especially a child, giving evidence of sexual mistreatment, particularly where that involves an allegation of violence or where the child is very young and vulnerable. The day when such witnesses could be aggressively (and even offensively) cross-examined are long gone. Either a judge will stop such cross-examination (probably the best outcome) or you will irretrievably lose the jury. Concessions or other good points in favour of your client will simply be lost on the jury as being no more than the product of bullying. Remember, you are not there to beat up a witness to make your client feel better — you are there to give your client every proper opportunity to be acquitted.

Limitations on Producing Evidence of Previous Sexual Experience

The limitations here are those that apply with respect to the cross-examination of complainants in these sorts of cases.

The Effects of a Re-Trial

As with all offences, re-trials are generally more difficult than the original trial.

1. You have disclosed your trial strategy in detail, and such witnesses as you may have called are now exposed to cross-examination on the previous evidence given in the first trial.

2. One of the things you should always consider is whether the same counsel should conduct the re-trial. In my view, usually trial counsel should remain the same, as the first trial counsel usually has a feel for the witnesses and can better evaluate any contemplated changes of strategy. However, look also to whether the first trial counsel had significant difficulty with a particular witness and whether perhaps a different style by a different counsel may produce a different result. Again, counsel should contribute to any discussion in this regard.

3. One thing that won’t change in trials where the evidence has been pre-recorded is that the pre-recorded recording will generally be replayed at the subsequent trial.

4. One advantage of a re-trial, in some cases, is that errors that crept into the first trial may be avoided on a re-trial.

Finally, it is important in preparing for these trials to make a list of the sorts of directions and warnings that you would seek to have a trial judge give to the jury at the time of the summing up. In this regard I always find it useful to go through the required directions identified in the Bench Book — it is easy to overlook a direction that may well be extremely beneficial to your client. There are also statutory warnings that must be given, for example the warning about the way in which a jury should treat the evidence of a special witness or a child witness. However, when asking for these directions, whilst it’s helpful to be able to refer the judge to the particular passage from the Bench Book, it is also wise to attempt to at least suggest some formulation of the direction appropriate to the particular case. The Bench Book is a guide and cannot possibly formulate the precise direction necessary in every case. You will do your client a great service by considering the form in which you say particular directions should be given to assist the trial Judge to formulate a direction that is helpful to your client’s position. It also helps the trial Judge (but of course will be difficult to challenge on appeal).

A. J. Glynn S.C.

This paper: (a) highlights the issues that arise in the construction of home-made Wills; (b) summarises the issues that arise in the construction of Wills; (c) examines some recent Will construction cases; and (d) examines an important High Court authority on the interpretation of whether a party has manifested an intention to create a trust.  

Problems with Home-made Wills

It may be a trite comment but the major problem with home-made Wills is that the will-maker is not a succession lawyer.

Testators who choose to use a home-made Will run the real risk that their estate will involve a section 18 of the Succession Act 1981 application or a construction application or both.

Will Kits, Will Forms and the Internet are now a significant cause of estate disputes and are generating significant income for lawyers.

In considering the construction of home-made Wills, Mr David M Haines QC the learned author of Construction of Wills in Australia,4 made the following comments:

“Home-made wills have been the subject of considerable interpretation by courts of construction.  Indeed, their number, and perhaps the incidence of inconsistency in decisions and the number of appeals arising from them, may have led to that cliche which is the toast of the Chancery bar:  ‘Here’s to the man who makes his own will’.”5 

Home-made Wills commonly result in failure to comply with the execution requirements of section 10 of the Succession Act 1981.  Appendix A to this paper is a photograph of the document that was subject to an application under the old section 9 [substantial compliance] of the Succession Act 1981 in the case of In the Will of Gaffney (1987) QSC 87.492.  The terms of the Will made by the partially blind testator were:

“I give everything to my darling wife Julie”

It was held by Thomas J that the testator’s signature across the text of the Will was “substantial compliance” with the then requirement for a Will to be signed “… at the foot or end of …” it.

The replacement of the “substantial compliance” with the “testamentary intention test” in the current section which was inserted as part of the 2006 amendments to the Succession Act 1981 has resulted in numerous successful applications for Probate of informal Wills. 

The success of “testamentary intention test” applications is in stark contrast to the operation of the repealed “substantial compliance” provisions.  Professor Langbein in his 1987 article, Excusing Harmless Errors in the Execution of Wills: A Report on Australia’s Tranquil Revolution in Probate Law 5 concluded:

“In the hands of the Queensland courts the measure has been a flop.  They have read ‘substantial compliance’ to mean ‘near perfect’ and have continued to invalidate wills in whose execution the testator committee some innocuous error.”

A side effect or perhaps a logical consequence of more informal Wills being admitted to Probate in section 18 applications is the increased need to seek orders from the Court to determine the meaning or effect of the words used in those informal documents. 

Haines QC makes the following comments on the drafting of home-made Wills: 

“Some authorities acknowledge that the authors of such documents lacked legal advice in drafting the document or, as the older authorities state, were inops consilii,7 and many contain the usual difficulties and inelegancies which appear to be endemic to wills drawn without professional assistance.8  Other documents may contain ambiguities because they are prepared by testators who plagiarised on precedent whether by reference to an earlier will which had been prepared professionally or by use of a ‘stationer’s will form’ as the document is called.9 It has been stated that the ‘non-professional draftsman or woman who does not appreciate the advantages resulting from phraseology that is well understood is prone to resort to colloquialisms’.10 He or she may use words improperly or use the vernacular.11”

However, Haines QC also states that when the courts consider the construction of home-made Wills:

“Greater latitude is permissible and given by the courts in construing the language employed by the testator in these circumstances.12

The words of such, a testator may be looked at and considered ‘less strictly than in a case’ where a will is drawn by a skilled professional.13 Indeed, it has been said that courts show the most ‘unbounded indulgence‘ towards the ‘ignorance, unskilfulness and negligence‘ of testators in interpreting their wills.14 The basis for this relaxation seems to be that the want of advice or learning may have caused the omission of legal or proper phrases or the misapplication of technical terms.15 It is unsound to place too much reliance on the precise meaning of particular or technical words or phrases in respect of a will prepared by an illiterate draftsman or woman as it will not assist in ascertaining a testator’s real intention.16” 

In considering a construction application of a home-made Will in Re Rodgers [2002] 1 Qd R 543, Mullins J said:

“[12] It is obvious that this problem has arisen because Mrs Rodgers undertook the drafting of her own will without the benefit of professional advice.  In construing the will to ascertain the intention of Mrs Rodgers, it is relevant to take into account that she had drafted her own will.  It is also relevant to consider the nature of the assets comprising Mrs Rodgers’ estate and that the pecuniary legacies in her will were intended to benefit the first and third respondents and the applicant Mrs Riethmuller.”

The construction issue in Re Rodgers arose because the estate did not have sufficient assets in the residuary estate to pay funeral and testamentary expenses and legacies.  The application sought a declaration that a gift of “… any monies that is in the Commonwealth Bank …” was a residuary gift, rather than a specific bequest.  The construction sought by the applicant was that the gift was in the nature of a residuary disposition and directions were also sought as to how the legacies made in the Will were to be paid.  Mullins J held that:

“[15]    … I consider that her intention by using the expression “any money” was equivalent to saying “any money left in the Commonwealth Bank after paying my debts and legacies”.  I therefore find that there is a contrary intention in the will for the purpose of s 59 of the Succession Act 1981 that, to the extent which the funeral, testamentary and administration expenses exceed the amount of Mrs Rodgers’ residuary estate, the funeral, testamentary and administration expenses be paid from Mrs Rodgers’ money in the Commonwealth Bank and that there is a contrary intention in the will for the purpose of s 60 of the Succession Act 1981 which was that the pecuniary legacies be paid from Mrs Rodgers’ money in the Commonwealth Bank.”

The drafting of a Will that results in there being insufficient residuary estate to pay the funeral, testamentary and administration expenses and pecuniary legacies is a common drafting problem in home-made Wills.17

Other observation made by Haines QC on the construction of home-made wills are:

–    Testator who draft their own wills often are not aware of the provisions in legislation which specify that a Will speaks from the date of death and they speak of what they own at the date of the Will, particularly when they use pronouns like ‘my’ in the document. Unless there is an intention expressed to the contrary, courts should construe an expression to mean property at the date of the Will.18

–    The court should look at the original document when construing a home-made Will.19

–    The power of a construction court to discard or modify words in a Will if they appear to be in contradiction with the intention of a testator as expressed in the Will.  Therefore, if an intention as expressed in handwriting is different from, say, the printed words in a stationer’s Will form or Will Kit, a court should have no difficulty in discarding the printed words and should rely on the words which express the real intention of the testator.

–  A home-made Will may be prepared by a person whose knowledge of the English language is inadequate because of lack of education or because it was not the primary language of that person.  Some allowance should be made for that fact.20

What are the issues with Will Construction?

In a short paper it is not possible to cover all aspects of Will Construction in detail.  There are a number of excellent text books that provide detailed commentary and analysis of the topic; for example – the leading Australian Text is Construction of Wills in Australia 21 by David M Haines QC; the excellent English text Williams on Wills 22; and Lee’s Manual of Queensland Succession Law contains four chapters on the topic.23  In addition, the online succession law services of Westlaw Au [Thomson Reuters] and LexisNexis are also good reference resources.

The circumstances where a personal representative, a beneficiary or a person who takes on Intestacy, needs to seek assistance from the Court as to the construction of the terms of a Will arises where there is an ambiguity in a Will or controversy in its interpretation.

In The Public Trustee of Queensland v Smith [2008] QSC 339, Atkinson J summarised the current principles that are applied in the construction of Wills as follows:

“[21]    The general principle governing construction of a will is the “usual meaning rule.”  This rule finds its source in the classic work by Sir James Wigram, Admission of Extrinsic Evidence in Aid of the Interpretation of Wills, first published in 1831.  It is expressed by Hardingham, Neave and Ford as:

“The basic principle, to which several qualifications must later be made, is that the court interprets the words of the will, in the context in which they appear, according to their usual or primary meaning.  If the words of the will are clear, and are capable of application by reference to extrinsic circumstances, the court will not admit evidence to demonstrate that the testator used the words in something other than their ordinary sense.”

It is only where the usual meaning rule is insufficient to resolve the construction of a provision of a will that the court may consider extrinsic evidence to resolve its meaning.

[22]     The circumstances in which extrinsic evidence may be used and the purpose for which it may be used are now governed by s 33C of the Succession Act 1981 (Qld) (“the Act”) which was extensively amended with effect from 1 April 2006.  Section 33C sets out what extrinsic evidence is admissible in interpreting a will:

(1) In a proceeding to interpret a will, evidence, including evidence of the testator’s intention, is admissible to help in the interpretation of the language used in the will if the language makes the will or part of it —

(a) meaningless; or

(b) ambiguous on the face of the will; or

(c) ambiguous in the light of the surrounding circumstances

(2) However, evidence of the testator’s intention is not admissible to establish any of the circumstances mentioned in subsection (1)(c).

(3) This section does not prevent the admission of evidence that would otherwise be admissible in a proceeding to interpret a will.”

    …

[25] In addition to these three circumstances in which extrinsic evidence may be led are the three circumstances set out in s 33C of the Act:

(1) when the language used in the will makes the will or part of it meaningless;

(2) when the language used in the will makes the will or part of it ambiguous on the face of the will;

In both of these circumstances extrinsic evidence, including evidence of the testator’s intention, is admissible to help in the interpretation of the language used in the will.

(3) when the language used in the will makes the will or part of it ambiguous in the light of the surrounding circumstances, then extrinsic evidence, but not evidence of the testator’s intention in order to establish any of those circumstances, is admissible to help in the interpretation of the language used in the will

[26] It follows from the forgoing discussion that the court of construction should start with the words of the will.  If their usual meaning is clear, the will will be given that construction.  If not, the court may have regard to such extrinsic evidence as allowed by the rules of construction traditionally applied by the courts with the addition of the aids to construction found in s 33C of the Act.” 

The provisions of section 33C of the Succession Act 1981 were inserted in the Act in 2006 and they provide general rules for the use of extrinsic evidence in the interpretation of Wills.

Prior to the enactment the current section 33C, common law principles applied in respect of the admission of extrinsic evidence as an aid to the construction or interpretation of a Will.  These principles were strict in their application and limited the nature of evidence which could be adduced in an application for construction.  As a general rule, subject only to several exceptions, extrinsic evidence was inadmissible as a means of construing a Will.  If there was no ambiguity in the document and its meaning was unequivocal, no extrinsic evidence of the intention of a testator was admissible to contradict the words of the Will: McRobert v McRobert (1920) 27 CLR 331 at 333.  The intention of a testator was construed from the words employed by them in their Will.24

In a construction application, the applicant seeks a determination by asking a specific question or questions of a judge who then construes the Will and answers the questions by an interpretation.  Questions posed to the Court must relate to a particular issue and should be clear in their wording.25

The principles applicable to construction of wills are uncontroversial.  Those principles were summarised by Isaac J in Fell v Fell (1922) 31 CLR268 at 273 – 276 and in Perrin v Morgan [1943] AC 399 at 406, 408, 414 – 415, 416, 420.  In construing the Will, the Court will strive to give effect to the intention of the testator, such intention being gathered from the language of the Will, read in the light of the circumstances in which the Will was made.  The language employed in the Will should be read in the sense which the testatrix appears to have attached to the expressions used.  The overriding consideration is the language used by the testatrix and the Court can neither ignore the plain meaning of words nor unnecessarily introduce words to give effect to an intention that is not expressed.

The proper approach is first to construe the Will having regard to its actual language, content and circumstances, and only to have regard to canons of construction and other decisions on the meaning of a word or phrase in the case of ambiguity.

In Perrin v Morgan Viscount Simon LC said:

“… the duty of a judge who is called on to interpret a will containing ordinary English words, is not to regard previous decisions as constituting a sort of legal dictionary to be consulted and remorselessly applied whatever the testator may have intended, but to construe the particular document so as to arrive at the testator’s real meaning according to its actual language and circumstances. ”

The general principles of Will construction are that:

(a) the meaning is to be taken from the words actually used and those words will be given their ordinary meaning unless it appears from the Will that the will-maker intended them to have some other special meaning;26

(b) the document will be construed as a whole and particular words and clauses must be looked at in the context of the whole document.27  The court must ascertain the basic scheme, which the testator had conceived when dealing with her estate, and construe the Will so as to give effect to that scheme.  

(c) in all cases, where the language of the Will renders it meaningless, uncertain or ambiguous either on its face or in the light of surrounding circumstances, the background circumstances of the will-maker or “armchair evidence”, is admissible to interpret a Will;28

(d) concerning the interpretation of similar words considered in other cases, the correct approach is to form an opinion about the particular Will and only then go to other cases to see if the opinion requires any modification in light of previous decisions rather than importing conclusions formed on other Wills and applying them to the Will under consideration.  Previous decisions are only a “useful starting point” and the Will itself must be examined closely to see what was intended in the particular case.  Each determination must occur in the context of the particular Will and it is most unwise to simply transfer conclusions as to the nature of the gift from one case to another simply because particular words have been used in each case.29  

In the judicial approach to construction of a Will the Court:

(a) looks at the Will subjectively and by referring to the words used by the testator; and

(b) has regard to any established rules of construction and construe the Will as a legal mind and not a lay person: see Fell v Fell (1922) 31 CLR 268 at 272-276 per Isaacs J.

A judge must direct his or her attention to the document in question and not be swayed by extraneous information except where it is admissible as evidence: see Nicol v Chant (1909) 7 CLR 569 at 589 per Isaacs J. 

A court cannot speculate or make a guess as to the intentions of a testator, but must adopt what it seems to be the most probable meaning of the Will: see Re Carson (deceased); Carson v Presbyterian Church of Queensland [1956] St R Qd 466 at 474.

Subject only to the power to make an order under family provision legislation, a court cannot make or rewrite a Will to improve upon what is an otherwise imperfect Will or to achieve a more sensible result: see Nicol v Chant (1909) 7 CLR 569 at 589 per Isaacs J.  If this was not so, a testator would lose his or her inalienable right of testation and the result may not accurately reflect his or her wishes.30  

The issues that arise in the construction of Wills concern one or more of three things:

(a) description of the property; or

(b) identification of the beneficiaries who the testator intends to take the property; or

(c) definition of the interests those beneficiaries shall take in the property. 

The circumstances that give rise to a construction issue may also give rise to the need for the Court to consider if the circumstance in which the Will was made establishes that the Will should be rectified pursuant to the power given to the Court by section 33(1) of the Succession Act 1981.   Section 33 is as follows:

“33     Court may rectify a will

(1) The court may make an order to rectify a will to carry out the intentions of the testator if the court is satisfied that the will does not carry out the testator’s intentions because—

(a) a clerical error was made; or

(b) the will does not give effect to the testator’s instructions.

(2) An application for an order to rectify a will may only be made within 6 months after the date of death of the testator.

(3) However, the court may, at any time, extend the time for making an application under subsection (2) if—

(a) the court considers it appropriate; and

(b) the final distribution of the estate has not been made.

(4) If the court makes an order to rectify a will, the court may direct that a certified copy of the order be attached to the will.

(5) If the court gives a direction under subsection (4), the court must hold the will until the certified copy is attached to it.”

The two circumstances where the power in section 33(1) can be exercised by the Court to rectify a Will are if:

(a) a clerical error was made; or

(b) the Will does not give effect to the testator’s instructions.

In Re Bryden,31 Dunn J said that following rules and principles apply to applications for the omission of words from Wills:

“(a) The due execution of a will raises a presumption that the testator knew and approved its contents.

(b) The onus is on those who seek to have probate granted with words omitted to rebut the presumption of knowledge and approval of those words which arises from the due execution of the will. The degree of proof required is proof on the balance of probabilities.

(c) Where it is established that a will has been read to or by a testator, the presumption that the testator knew and approved of the contents of the will is a very strong one and can be rebutted only by the clearest evidence.  It is not, however, a conclusive presumption, and may be rebutted by adequate proof of mistake or of fraud.

(d) Once those who seek to have words omitted have led evidence of mistake which displaces, on the balance of probabilities, the presumption, there is an evidentiary onus on those who seek to have the words retained in the will to establish that the will was read by or to the testator in order for them to have the benefit of the very strong presumption that the testator knew and approved of those words.”

The jurisdiction is dependent on accidental or inadvertent conduct — see Will of Allen [1988] 1 Qd R 1.

In ANZ Trustees Limited v Stanley Hamlet and Ors [2010] VSC 207, Pagone J when considering the underlying policy of the rectification power in section 31 of the Wills Act 1997 (VIC) stated:

“3. The power in the provision … does not remove the need for the proper construction of a Will and is not an optional alternative for the proper construction of the terms of a Will.  Indeed, it is a condition precedent to the exercise of the power that the Court be satisfied that the Will does not carry out the Testator’s intentions and that this satisfaction be based on one of two specified reasons namely, either that a clerical error was made or that the Will does not give effect to the Testator’s intention.  The existence of the second obvious conditions requires the Will to be construed and to be found upon its proper construction not to give effect to the instructions of the Testator.”

This is a key issue before the court can invoke the power to rectify.  If the Court considers that the terms of the Will carry out the testators’ instructions then there is no power to rectify the provisions in the Will. 

Recent construction cases

The following nine recent cases are typical examples of the types of constructions issues that are considered by the courts.  Note:  of the nine cases five were home-made Wills.

In The Trust Company Ltd & Anor v. Zdilar & Ors [2011] QSC 5, Margaret Wilson J considered an application for a declaration as to the proper construction of the Will of Anne Mary Ashton [“Mrs Ashton”] who died on 9 October 2010.

Mrs Ashton who was aged 91 when she died and she was predeceased by her husband and only child.

She was survived by four grandchildren and eight great-grandchildren.

Clause 3(b) of the Will provided:

“AS TO my house property (including contents and all personal items) situated at 18 Esma Street, Rochedale or any substitute house property I shall own at the date of my death for such of my grandchildren ….”

The house at 18 Esma Street, Rochedale was sold nine years after the date of the Will and Mrs Ashton moved into the Tall Trees Retirement Village at Rochedale.  She paid $311,000 for a sublease of a unit.  On her death her estate received $274,840 as an exit fee.

The question for construction was whether at the date of her death Mrs Ashton “owned” a “substitute house property”.  If she did, then the exit fee would pass to her grandchildren under clause 3(b).  If she did not, the exit fee fell into the residuary estate which was left to her great grandchildren.

Justice Margaret Wilson after considering the usual meaning of the words of the Will in light of the circumstances in which the Will was made, and concluded: 

“[40]    The testatrix referred to the property at 18 Esma Street as ‘my house property’. The use of the possessive pronoun ‘my’ bespeaks ownership in the sense of ‘belonging to me’ or ‘over which I have full control’.  In that context, her reference to ‘any substitute house property which I shall own’ was, in my view, a reference to any property fitting the description of ‘house’ in relation to which she had similar rights.  Her rights in relation to the unit in the retirement village were very different from her rights as the owner of the fee simple in the property at 18 Esma Street.

[41]    It follows, in my view, that the unit in the retirement village was not ‘a substitute house property which I shall own at the date of my death’ within the meaning of clause 3(b) of the will. It fell into the residuary estate, and the testatrix’s great grandchildren, who are the residuary beneficiaries, are entitled to the exit entitlement paid by Tall Trees Rochedale Pty Ltd upon the termination of the sub-lease 14 days after she died.”32

In Harmer v The Public Trustee of Qld as administrator of the estate of Henry Rouse Harmer (deceased) [2011] QSC 147, the deceased’s last Will of 15 September 1971 devised and bequeathed estate to his wife absolutely but, in the event that she predeceased him, to his stepson [i.e. his wife’s son].  The deceased and his wife were divorced in 1979.  Neither the testator nor his former wife remarried.  His former wife died in 1993.  The question to be decided was did the stepson receive the whole estate under the substitution provision.  The deceased’s sister brought an application seeking a declarations that the gift to the stepson failed and that she was entitled to the whole estate on Intestacy.

It was held by Martin J, who followed a decision of Shepherdson J in Re Loweke [1995] 1 Qd R 615, that the effect of divorce on a Will under then section 18(2)33 of the Succession Act 1981 was that the testator’s former wife was treated as having predeceased him so that the gift over to her son took effect.

“[20] … The effect of s 18 crystallised on the divorce and from that time the will of the deceased worked to provide that the stepson would receive the gift.” 

In Crnjanin v Crnjanin & Ors [2011] QSC 295 the issue to decided was a gift of “all monies held by me in bank or investment accounts and all other assets both real and personal ..” a residuary clause or specific gift.  The home-made Will listed a number of specific gifts of real property to beneficiaries.  The structure of the Will was analysed by Applegarth J as follows:

“[26]      The will‘s structure indicates that the testator identified his intended beneficiaries in cll 3 to 8. The will devotes a clause to each beneficiary.  The testator listed in each clause which of the assets in his estate he was allocating to the relevant beneficiary.  As it happens, most of the assets in the estate were items of real property.  The final specific asset was the over $100,000 in cash held in the testator‘s bank and investment accounts. These “monies” are identified as one of the “assets” of the testator by the words of cl 8. They are identified in contradistinction to “all other assets … held by me at the time of my death.” The testator indicated that he wished to give the monies to June Crnjanin. Then, with the addition of “and”, he added that he also wished to give to June Crnjanin the residue of his estate. Justice Applegarth concluded:

[38]    On balance, I construe the first limb of cl 8 as a specific gift of the monies to which it refers.  To adopt the words of Dixon CJ, the deceased has designated those monies as something that “form[s] an identifiable part of his property and is, so to speak, distinguished by the intention of the testator as ascertained from his will to separate it in his disposition from the rest of his property for the purpose of bequeathing it as the distinct subject of a testamentary disposition.”

In Palethorpe v The Public Trustee of Queensland & Ors [2011] QSC 335 the applicant sought an order for the rectification of the Will under section 33 that the gift in the Will of “my unit at 2/55 Hill Parade, Clontarf” was a gift of all three flats at 55 Hill Parade.  While, it was a rectification case rather than a construction case, the issue of the meaning and effect of the clause was relevant to the outcome.  Justice Atkinson concluded that:

“[59]    The terms of the clause are clear and unambiguous.  A further difficulty in concluding that the Will did not reflect the deceased’s instructions is that the deceased was given the Will, which plainly stated that the applicant was left ‘my unit at 2/55 Hill Parade’, to read before she signed it, which she did in Ms Maller’s presence.  The deceased had the opportunity if she did not intend to limit what would pass under cl 6.01 to unit 2 to correct that, however, she did not inform Ms Maller that that was not what she had intended.

[62]    In my view there is no ‘clear and convincing proof’ that the Will does not give effect to the deceased’s instructions.”

In O’Brien & Anor v Smith & Anor [2012] QSC 166 the residuary clause of the home-made Will was to establish a trust to be administered as the executors “shall see fit”.  The issue was whether beneficiaries defined with sufficient certainty.  The clause was as follows:

“OTHER than the gifts and bequests set out in Clause 3 of this my Will I GIVE, DEVISE AND BEQUEATH the balance, rest, remainder and residue of my estate to a trust or other entity to be set up by my Executors and Administrators and administered by them as they shall see fit.

Monies may be applied to Education of all my Grandchildren and allocated as my Executors shall see fit. Monies may be invested as my Executors shall see fit.  On my death, my Executors may sell or dispose of properties as they see fit.  All gifts and bequests as set out in Clause 3 to be distributed at times as seen fit by Executors. Loans may be made to those whose ability to repay such loans is proved.

To my granddaughter BRONWYN JANE JONES I GIVE the NOROTAKI [sic] DINNER SERVICE in its complete set.  All my other personal effects shall be distributed to family members.”

The net value of the estate was $3,260,000.  The deceased was survived by five children and 18 grandchildren.

The provisions of section 33R of the Succession Act 1981 were considered. The section is as follows:

“33R     When a person may delegate power to dispose of property by a will

A power or a trust, created by will, to dispose of property is not void on the ground that it is a delegation of the testator’s power to make a will, if the same power or trust would be valid if made by the testator, by instrument, in the testator’s lifetime.”

Justice Margaret Wilson summarised the requirements to create a valid trust as follows:

“[26]     The requirements for a valid trust are described in Jacobs’ Law of Trusts

‘There are four essential elements present in every form of trust: the trustee, the trust property, the beneficiary or charitable purpose, and the personal obligation annexed to property.”

[27]     With some exceptions (principally charitable trusts), any trust must have a beneficiary (or object), and a purported trust without a beneficiary is void. The degree of certainty with which the beneficiaries of a private trust must be identified varies according to whether it is a fixed trust or a discretionary trust.

[28]     The beneficiaries of a fixed trust must be identified with sufficient precision to satisfy “list certainty” — i.e. it must be possible for the trustees, or the Court in their stead, to identify all of them.

[29]     In the case of a discretionary trust, the beneficiaries must be defined with sufficient certainty to satisfy “criterion certainty” — i.e. it must be possible to say with certainty whether any given individual is or is not a member of the class of persons intended as beneficiaries, even though it may not be possible to identify every member of the class. Nevertheless, their definition must not be:

“… so hopelessly wide as to not form “anything like a class‟ so that the trust is administratively unworkable or … one that cannot be executed.”

Her Honour concluded:

“[36] Clause 4 must be read as a whole. The first paragraph purports to create a trust, but does not name the beneficiaries or describe them in any way.  The second paragraph gives the trustees certain powers.  The third paragraph contains a specific gift of the deceased’s dinner service to his granddaughter (in other words, the dinner service was not to fall into residue but was dealt with separately) and expresses a non-binding wish that his other personal effects be distributed to “family members’.

[37] There are a number of indicators that the deceased did not intend to leave his residuary estate on trust for his grandchildren absolutely.

(a) A trust for his grandchildren absolutely would be inconsistent with the first paragraph of clause 4 — that the trust be administered by the executors as they see fit.

(b) The second paragraph lists a number of things which the trustees “may” do.  Applying moneys to the education of the deceased’s grandchildren is just one of them.  There is no limitation on the persons or institutions with whom moneys may be invested, or to whom properties may be sold or otherwise disposed of.  The only limitation on those to whom loans may be made is that their ability to repay the loans must be proved.

(c) The second paragraph further provides that the gifts in clause 3 (none of which is to a grandchild) are to be distributed at such times as the executors see fit.

(d) The deceased’s personal effects (other than the dinner service) were part of his residuary estate. In the third paragraph he expressed the wish that these be distributed to ‘family members’ — a class prima facie wider than ‘grandchildren’.

[38] There is no ambiguity as to the deceased’s intention, which was that the executors (the trustees of the trust) decide upon the beneficiaries of the trust.

[39] The applicant executors were right not to press the argument that clause 4 amounted to the conferral of a general power of appointment under which they, as donees of the power, could appoint the residuary estate to anyone, including themselves.  If that were the correct interpretation of clause 4, it could be considered a gift of the residuary estate to them absolutely. However, as counsel for the applicants acknowledged, the wording of clause 4 suggests that the deceased intended them to exercise their discretion in favour of others who are unspecified, but not themselves.  Were the gift intended to be tantamount to a gift to the applicants absolutely, it would have been unnecessary to give them the powers in the second paragraph.

[40] Nor do I think it is arguable that it was the deceased’s intention to benefit his children and grandchildren as the objects of the trust. Such an argument could be made only if there were an ambiguity in the will and the evidence of Mrs O’Brien were admissible to assist in the resolution of that ambiguity. However, there is no ambiguity: there is nothing in the will which might be thought to identify the children and grandchildren as the beneficiaries of the trust. In my view Mrs O’Brien‟s evidence is not admissible.

[41] The trust the deceased purported to create necessarily failed for want of beneficiaries.  It follows that there is a partial intestacy.  The residuary estate is to be distributed in accordance with the intestacy rules.

You may ponder why a testator with over $3m in assets who wished to create a trust in their Will [which failed] used a home-made Will?

(Continued in Part 2)

Footnotes

1. Perrin v Morgan [1943] AC 399 at 406 per Viscount Simon; LJ Hardingham, MA Neave, HAJ Ford, Wills and Intestacy (2nd ed) at [1101]; DM Haines, Construction of Wills in Australia at [5.2]; K Mackie and M Burton, Outline of Succession (2nd ed) at [7.4] — [7.6].
2. Ralph v Carrick (1879) 11 Ch D 873 at 878 per Cotton LJ, cited with approval by Isaacs, J in Fell v Fell (1922) 31 CLR 268 at 273.
3. Per Atkinson J in Re Thomson & Anor (as trustees of the trusts established pursuant to the will of Shine (deceased)) [2010] QSC 167 at [10].
4. LexisNexis Butterworths, 2007 at par 1.44.
5. Re Minchell’s Will Trusts [ 1964] 2 All ER 47 at 48 per Chancellor Salt QC.
6. (1987) 87 Columbia Law Review 1.
7. Lewis v O’Loughlin (1971) 125 CLR 320 at 326 per Barwick CJ; Re Minchell’s Will Trusts [1964] 2 All ER 47 at 48 per Chancellor Salt QC.
8. Public Trustee v Young (1980) 24 SASR 407 at 408 per the Full Court.
9. A will entirely in the handwriting of a testator is called a holograph will.
10. Re Jackson, deceased; Macfarlane v Veale [1950] SASR 268 at 271 per Mayo]; Re Taylor; Taylor v Tweedie [1923] 1 Ch 99 at 104 per the Court of Appeal.
11. Re Jackson, deceased [1950] SASR 268 at 271.
12. Lewis v O’Loughlin (1971) 125 CLR 320 at 330 per Menzies J. ‘[I]t is quite legitimate to have [the fact that a layperson drew his or her own will] in mind if the machinery which he [or she] has devised creaks’: Wardlaw’s Trustees v Lennox’s Executor 1940 SC 286 at 293 per Lord Normand; Re Crocombe, deceased [1949] SASR 302 at 305 per Mayo J; Estate of Wemyss, deceased (1951) 7 LSJS (SA) 426 at 428 per Mayo J; Re Rodgers [2001] 1 Qd R 543; [2001] QSC 282 at [12] per Mullins J.  The fact that a will is on a printed form and not drawn     professionally for a particular testator makes a great deal of difference in the construction: Re Harrison, Turner v Hellard (1885) 30 Ch D 390 at 394 per the Court of Appeal.
13. Re Taylor; Taylor v Tweedie [1923] 1 Ch 99 at 105 per Lord Sterndale MR. See also Forth v Chapman (1720) 1 P & M 663 at 666; 24 ER 559.
14. Armstrong v Stokell [2001] TASSC 132; BC200107221 at [21] per Underwood J, there citing with approval Jarman on Wills, 1st ed, at p 315.
15. Lewis v Rees (1856) 3 K & J 132 at 147; 69 ER 1052 per Page Wood VC; Thellusson v Lord Rendlesham (1859) 7 HLC 429 at 519; 11 ER 172, both cited in Estate of Wenyss, deceased (1951) 7 LSJS (SA) 426
16. National Trustees, Executors and Agency Co of Australasia Ltd v O’Connor (1919) 27 CLR 60 at 68 per Rich J.
17. For example see Crnjanin v Crnjanin & Ors [2011] QSC 295.
18. Re Taylor; Taylor v Tweedie [1923] 1 Ch 99 at 105 per Lord Sterndale MR. See also Forth v Chapman (1720) 1 P & M 663 at 666; 24 ER.
19. Armstrong v Stokell [2001] TASSC 132; BC200107221 at [21] per Underwood J, there citing with approval Jarman on Wills, 1st ed, at p 315.
20. Lowin deceased; Perpetual Trustee Co Ltd Asprey JA.
21. LexisNexis Butterworths, 2007
22. LexisNexis, London, 9th ed., 2008
23. 6th ed., by Alun A Preece, Thompson Reuters — Chapters 14, 15, 16 and 17.
24. See Thompson Reuters — Westlaw AU Australian Succession Law at [190.1010].
25. See Thompson Reuters — Westlaw AU Australian Succession Law at [190.330]. 
26. See Fell v Fell (1922) 31 CLR 268 and Construction of Wills in Australia, Haines, at pars [2.33] — [2.36].
27. Haines, at par [2.30].
28. Haines, at pars [5.8] — [5.10].
29. Haines, at pars [2.2] to [2.7].
30. See Haines at [2.9].
31. [1975] Qd R 210 at 212-213
32. This issue was also considered by Mullins J in The Trust Company Limited v Gibson & Anor [2012] QSC 183, which was a case that is noteworthy for not following the decision in Re Viertel [1997] Q Qd R 110.
33. i.e. as at the date of the divorce – now section 15(4).
34. McBride v Hudson (1962) 107 CLR 604 at 617, [1962] HCA 5 at [5] per Dixon CJ.

The clause was:

“7. I APPOINT absolutely and irrevocably all my children as beneficiaries of the REBECCA JAN DOWN Trust, but direct my Trustees to make no distribution to the beneficiaries until such time as the REBECCA JAN DOWN is deceased.

Rebecca Jan Down was the deceased daughter who had Down syndrome.  In considering the meaning of the words “all my children”, her Honour said:

“[8] The description “children” in its ordinary sense refers to natural children, although it can be construed as extending to step-children if the context and circumstances of the case (based on admissible evidence) show this is the preferable construction.  That is, the words, ‘all my children’ should be construed as meaning the first to sixth respondents, unless there is something in the will, or the context and surrounding circumstances to which I am entitled to have regard, which indicates that in this will the phrase, ‘all my children’ should be interpreted to include the three adult children of Patricia Down.

[9] It might be that the word, ‘all’ before the words ‘my children’ gives some indication that a more extensive class of children, than the testator’s natural children, was intended.  I would not so construe the word ‘all’ in this case.  The intention of clause 7 seems to me to be to ensure that one of the testator’s children, Rebecca, was particularly cared for due to her special vulnerabilities and needs.  Having made special provision for that one child the phrase ‘all my children’ is apt to refer to the group of the testator’s other children, in contradistinction to his child Rebecca, as to the remaining gift. In those circumstances I do not see the word ‘all’ as expanding the class of children from natural children to include step-children.

[10] Again confining myself to the words of the will, the testator has made an initial gift to his wife (should she survive him), but in the event that she did not, the remaining terms of his will do not mention the children of Patricia Down by name, in the way that three of his natural children are mentioned. The executors, in the event that Patricia Down does not survive the testator, are named as two of his natural children.  Rebecca is also named particularly, due to her circumstances.  If, for example, one of the seventh to ninth respondents had been named as executor, or described, as are Helen and Shirley, as a daughter (or son), that might well be an indication from the language of the will itself that the phrase ‘all my children’ was to include step-children as well as natural children.  This point is not decisive, but it is an indicator relevant in construing the will.

[12] The facts as to Mr Down’s first marriage and six children, and to Patricia Down’s three adult children are obviously facts to which the Court may have regard.  So are the ages of those children at the time the will was made and the age of the testator and Mrs Patricia Down at the time the will was made.  The dates of birth of the seventh to ninth respondents respectively are 7 March 1957, 3 July 1958 and 23 May 1959.  So that at the time the will was made they were 43, 41 and 39 years old.  Patricia Down was 75 at the time of her death in 2006, making her around 68 at the time of her marriage to Gilbert Down.

[13] There was no pre-existing Rebecca Jan Down Trust as at the time of the subject will. In August 1995 Mr Gilbert Down had made a previous will and on the same day a document was drawn up for a trust named the Down Family Trust.  This document is much more complicated than the simple form of the will.  Its provisions differ in substance from the dispositions in the will. There is no evidence that the Down Family Trust ever operated. ….

[17] On the material before me I am not convinced that circumstances or context admissible in evidence on this application takes the phrase ‘all my children’ outside its ordinary meaning so that it extends to the adult step-children of the testator.  In those circumstances I declare that on the proper construction of the will of Gilbert James Down dated 17 December 1999 the will:

(a) directs the executors to sell all the property of the testator and hold that property on trust for Rebecca Jan Down for her life, and

(b) upon the death of Rebecca Jan Down to hold that property on trust for Kenneth Gilbert Down, Geoffrey Phillip Down, Raymond James Down, Helen Doris Kathleen Thomson and Shirley Ann Sommer.”

In Gamer v Whip [2012] QSC 209 the applicant sought orders that:

(a) the proper construction of the document signed by GLENDA MARY CATHERINE PAGE deceased dated 28 November 2011 and headed ‘To the Executor of the will of Joan Kathleen Atkinson deceased’, Ms Page intended to assign her interest in the estate of JOAN KATHLEEN ATKINSON deceased to Janet Catherine Christiansen and Monica Julie Jensen; and

(b) A declaration that the document is not a codicil pursuant to s 18 of the Succession Act 1981.

The document was as follows:

“I Glenda Mary Catherine Page being a beneficiary under the will of Joan Kathleen Atkinson relinquish my beneficial entitlements under the will and bequeath the same in equal shares to Janet Catherine Christiansen and Monica Julie Jensen, who are also beneficiaries under the said will.”

On 26 or 27 November 2011, Ms Page was informed that she was a beneficiary in the estate of Ms Atkinson who had died a month earlier.  Ms Page was very ill and after preparing the document she had a Justice of the Peace witness her signature on the document.

Justice Atkinson observed:

“The difficulty in the interpretation of the document arises from the use of words by Ms Page without legal advice which on their face, if used alone, would suggest a particular interpretation.  However, when the document is read as a whole, as it should be, it appears to me that the interpretation becomes reasonably clear.”35

Both counsel agree that it could not be considered to be an informal codicil to Ms Page’s will.  Section 18 of the Succession Act 1981 (Qld) gives the Court wide power to dispense with the execution requirements for a will or an alteration or a revocation and applies to any document, or indeed any part of a document, that purports to state the testamentary intentions of a deceased person and has not been executed as the Succession Act otherwise requires.  

However, the reason why this broad power is not apt to make this document a codicil to the will is that the document does not purport to give effect to any testamentary intention of Ms Page.  It is true that the word ‘bequeath’ is used, but it is not used in the sense that she intends the document to operate on her death. Indeed, her intention from the document and from her behaviour in sending it to the executor of Ms Atkinson’s estate is that it was to operate with regard to her share of Ms Atkinson’s estate, which she wished to be given to Ms Christiansen and Ms Jensen, rather than receive the benefit of it herself.

There is nothing in the document to suggest, other than incorrect use of the word ‘bequeath’, that it is meant to be a testamentary document, and I am in those circumstances prepared to declare that it does not operate as a codicil to Ms Page’s will.”

Her Honour also concluded that the document was an assignment of her interest in the estate of Joan Kathleen Atkinson, not a renunciation of her entitlement.

In Parkinson v Diabetes Australia [2011] NSWSC 1530 the issue was the correct identity of the charity that was to receive a one-third share of the whole of the deceased’s estate.  The remaining two-thirds share was received by two other charities.

The sub-clause of the residuary clause of the Will36 was a follows:

“(b) As to One (1) part thereof for DIABETES AUSTRALIA and I DIRECT that the receipt of the Secretary or other authorised officer for the time being shall be a sufficient discharge to my Trustee;”

Two incorporated bodies existed, one named Diabetes Australia and one named Diabetes Australia-New South Wales.  The question was which body did the testator intended to be the beneficiary.  Justice Bryson considered the history of the organisations involved in diabetes and observed:

“4 There have been organisations in New South Wales concerned with the interests of persons suffering from diabetes for over seventy years and both defendants have associations with earlier bodies.

5 People who suffer from diabetes have many shared interests and needs including interests in dealings with the Commonwealth government and its National Diabetes Services Scheme.  There are now eight State and Territory diabetes organisations and there is also a Federal body which functions as a national secretariat for government lobbying and policy development.

6 The second defendant is the organisation which functions in New South Wales. It was incorporated on 15 October 1976. It seems that a predecessor existed earlier. When incorporated its name was Diabetic Association of New South Wales but by the time Mr Poore’s activities can be seen from evidence its name had become Diabetes Australia – New South Wales.  It changed its name again on 3 December 2010 and its name now is Australian Diabetes Council.

7 The first defendant was created at the initiative of State and Territory organisations.  Its office and its main activities are in Canberra.  It was incorporated on 8 September 1976 and was then named The Diabetes Federation of Australia.  Later its name was changed to Australian Diabetes Foundation.  Then on 8 November 1988 its name was changed to Diabetes Australia and it still has that name.

8 It is a company limited by guarantee and when it took its present name it was licensed to omit the word “Limited” from its name.  Some witnesses spoke of it as once being named Diabetes Australia Limited and being sometimes referred to even now by the abbreviation “DAL” but search papers of ASIC records in evidence do not show that it ever had the word “Limited” as part of its name.  Yet that word appears at least once in its documents in evidence: Court book 34, front page of copy of its Constitution.

9 The first defendant is a national body and its principal objects include promotion of research into all aspects of diabetes, prevention and early detection and advocating access to treatment.  Its inaugural members included twenty-five individuals who were founding life members.  There were also State associations.  Not all State associations still are members.  There are other member organisations and special members.  It seems on the terms of its constitution that it is possible that an individual might become a member or associate member but this is not usual.  Its members are almost all organisations, not individuals.

10 The second defendant resigned from the first defendant in 2008.  Mr Poore cannot ever have been a member of the first defendant.

11 The second defendant’s members are mainly individuals.  There are perhaps thousands of members. Its activities include considerable attention to membership and subscriptions.  It maintains active communication with members and with community organisations to which members belong.  There are some special classes but generally membership must be renewed annually and a membership fee must be paid annually in most cases.

12 The second defendant maintains records of personal information about its members relevant to its activities.  In these records little was known of Mr Poore in the second defendant’s office.  However, its records do show that he was diagnosed with type 1 diabetes in 1974.  He made a payment which seems to show that he had become a member or had given a donor’s pledge by 18 November 1987.  He clearly appears in records as a concession member from about 28 April 2003 onwards and he may have been a subscribing member earlier.

13 In the ordinary course he would have received many communications from the second defendant.  An example is the membership renewal form used by the second defendant from 2004 to 2006.  At the head of its front page is the name Diabetes Australia, with the second defendant’s ACN number.  The same appears at the head of the second page and there are other references to the second defendant as DA-NSW and as Diabetes Australia-NSW.  Its email address and website include “diabetesnsw”.

14 Mr Poore probably received other correspondence each year or more often on a letterhead which included the name, Diabetes Australia-New South Wales and DIABETES AUSTRALIA-NSW, with references in the body of the letter in similar terms.”

After examining the publications by the two defendants Bryson J concluded:

“20 A person who carefully or regularly read the quarterly magazine could not fail to know that there were separate State and national entities with similar names.  A person who gave them less than close attention could easily miss this distinction.

21 Nothing is known as to Mr Poore’s personal characteristics or acuity except that he was employed as an advertising clerk and that he was interested enough to make donations over many years which suggests that he could well have thought about where his donations were going.  He was interested enough to designate DART repeatedly for his donations.  He left estate assets which suggest a careful and regular life.  He used the name Diabetes Australia twice in wills.  Otherwise, nothing is known about how he used language when dealing with organisations in the diabetes field.  Practically nothing is known about how he used language at all.”

After reviewing the case authorities on the description of charities [see paragraphs 27 to 42 and in particular the House of Lords decision in National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children [1915] AC 207] Bryson J concluded:

“43 My principal guide is the National Society decision.  The primary question is about the language used by the testator, how he used language and what the words used meant when he used them.

44 In the background is the important question, what would the testator say if he really did intend to give his gift to the person whose exact name he gave?  I see this consideration as part of the basis of readiness to speak of the starting point as a presumption or strong presumption in favour of literal meaning. …

48 None of the evidence in this case really shows anything about Mr Poore’s use of language and, in particular, the evidence does not show anything about how he identified one or other of the entities operating in this field.  The evidence gives only the most oblique and indeterminate indications of how Mr Poore used language.

49 The fact that he had a long continuing association with the second defendant does not explain what he meant when he gave the name of the first defendant. That consideration could only have much force if it were proved that he did not know that the first defendant existed and had its own name.  There is no proof of that.  He could well have known about the first defendant and its name.  He could well have been aware that there were two different societies.  That information was repeatedly made available to him.  It could be understood from the quarterly magazines.  The full name of the second defendant and also the full name of the first defendant were often before him.

50 It would only be a speculation to suppose or act on the basis that he did not know that there were two and that each had a name of its own.  Mr Poore had strong associations with the second defendant. If anything, this suggests that he would have had means of knowing its correct name and using it, if he meant to refer to it on a serious occasion.

51 In this case, as in the National Society case, there is a need for clear demonstration that where the correct name is used something else was intended. In the present case the evidence before me does not resolve the doubt in a clear way, it does not resolve it in favour of the second defendant. Nothing overcomes the question: What would Mr Poore have said if he did intend to benefit the first defendant?

52 My conclusion is that he named the first defendant and the evidence does not show that he did not mean what he said. I intend to dispose of the case in that sense.”

The significant issue arising from this decision for solicitors is the need to correctly identify the correct names of beneficiaries chosen by the testator; and if the beneficiary is a charity its preferred bequest clause.  If there are two or more charities with similar names, further questions need to be put to the testator and to record their instructions as to the identity of the charity.

In Kean v Murphy [2012] NSWSC 948 the issue was whether by clause 5 of her home-made Will, Sister Eileen Kean left her estate to be divided equally between all of the children of her three named siblings or whether she left her estate to be divided into three equal parts with each part then to be divided equally between the children of each of her three named siblings, with the result that the children of each sibling would receive an equal share of a one-third interest [i.e. per capita or per stirpes?].

The clause in question was as follows:

“5. Residuary/Residue of my Estate

I direct my Executor(s) to pay all my debts and then I give the residue whole of my estate to that I may possess at death to be divided evenly among the children of my brothers John Francis (dec), Thomas James (dec) and my sister Doreen Phyllis – the house to be sold.  Should any of the family desire possessions in the house – they may take them – otherwise they should be sold.  A small a/c is located in the St George Bank.

All property, goods and money to be divided into three equal parts – then divided evenly amongst the groups of my three siblings.”

In considering the issue Justice Ball said: 

“15 In construing cl 5 of the will, it is important to bear in mind that it was drafted without legal assistance. Sister Eileen was obviously an intelligent and well educated person, but she was old and frail at the time she prepared her will and it cannot be expected that she would use language as precisely as a lawyer normally would.

16 Clause 5 has two paragraphs.  The critical words of the first paragraph are the words that state that the whole of her estate is ‘to be divided evenly among the children of my brothers John Francis (dec), Thomas James (dec) and my sister Doreen Phyllis’. 

17 It is clear that by ‘evenly’ Sister Eileen meant ‘equally’ and taken alone those words suggest that her estate was to be divided equally between the children of Sister Eileen’s named siblings.

18 However, the second paragraph of cl 5 provides: 

 ‘All property, goods and money to be divided into three equal parts – then divided evenly amongst the groups of my three siblings.’

19 It is not disputed, nor could it be, that the reference to ‘[a]ll property, goods and money’ is a reference to the whole of Sister Eileen’s estate. Nor is it disputed that the reference to ‘my three siblings’ is a reference back to the three siblings named in the previous paragraph.

20 In my opinion, it is clear that Sister Eileen included the second paragraph as an explicit statement of how she intended the first paragraph to operate.  In my opinion, that explicit statement is clear.  First, the paragraph states that Sister Eileen’s estate is to be divided into three equal parts.  Then (to use Sister Eileen’s word), the result is to be divided equally among the identified groups.  What Sister Eileen must have intended was that each one third part would be divided equally between the members of one of the three identified group.  If what she had intended was that the whole be divided, there would have been no purpose in providing first for the division into three equal parts. …

25 It is true that the first paragraph read alone suggests that the quality of evenness or equality is to be measured by reference to what each beneficiary receives and not what each family group receives.  However, as I have said, the second paragraph was to spell out in more detail how the distribution contemplated by the first paragraph was to occur.  For the reasons I have given, in my opinion the purpose of the second paragraph is clear.  Having regard to the terms of the second paragraph, I do not think it does any great violence to the first paragraph to interpret it so that the word ‘evenly’ applies to the three groups of children rather than to each individual child.

26 I should add that I do not think that the conclusion I have reached is so extraordinary that the court should strive to give the words some other meaning. Sister Eileen had a close relationship with her three siblings and had relationships of various degrees of closeness with their children. There is nothing odd in those circumstances in a decision to seek to treat the three families equally.

27 It follows from what I have said that there is no ambiguity in cl 5. Consequently, the evidence of intention is not admissible.”

Construction issues with trust deeds

Trusts are obligations recognised and enforced in equity.  They may be created by unilateral declaration of the settlor.  Consideration (moving from the trustee upon whom the trust property is settled) is not generally essential. Third party beneficiaries are the appropriate parties to enforce the trust.

Trust terms need not be set out by the trust creator, so long as there is sufficient certainty of subject-matter and certainty of objects.

Powers, duties and liabilities of trustees, rights of beneficiaries and whether the settler has power to revoke the trust may all, in an appropriate case, be established by the rules of equity and legislation.

While, the origins and nature of contracts and trusts are very different Mason and Deane JJ observed in Gosper v Sawyer (1985) 160 CLR 548 at 568-569:

“There is … no dichotomy between the two.  The contractual relationship provides one of the most common bases for the establishment or implication and for the definition of a trust.”37

A trust could be a sham if the settlor has no intention to create a trust although this is likely to be very rare following the decision of the High Court in Byrnes v Kendle (2011) 243 CLR 253.  The High Court in deliberating on whether an express trust existed, considered at length what was meant by the intention of a settlor to create the trust.  It was held that the objective intention is derived from the circumstances and not the subjective intention.

“The authorities establish that in relation to trusts, the search for ‘intention’ is only a search for the intention as revealed in the words the parties used, amplified by facts known to the parties”, – per Heydon and Crennan JJ in Byrnes v Kendle at [105].

The circumstances in Byrnes v Kendle were that Mrs Byrnes and Mr Kendle were married in 1980.  For both of them it was a second marriage, and they both had children from their previous marriages.  Mr Kendle purchased a property in Brighton, South Australia in 1984.  In 1989 Mrs Byrnes & Mr Kendle executed a deed which included a provision in relation to the Brighton property that Mr Kendle “… stands possessed of and holds one undivided half interest in the Property as tenant in common upon trust for [Mrs Byrnes] absolutely”.

In 1994 the Brighton property was sold and a property at Murray Bridge was purchased using the proceeds of the sale of the Brighton Property.  In 1997 Mrs Byrnes & Mr Kendle executed a further deed acknowledging that:

“… each party was entitled to a ½ interest as tenants in common of the property … and that [Mr Kendle], who was registered proprietor of the Original Property, stood possessed of an undivided half interest in the Original Property upon trust for [Mrs Byrnes] absolutely”; and

“that their respective entitlements to interests in the Original Property are transposed into interests in the New Property.”

In 2001, Mrs Byrnes & Mr Kendle moved out of the Murray Bridge property.  During the period from 2001 to 2007 Mr Kendle let the property to his son, Kym, for $125.00 per week.  However, Kym only paid rent for the first two weeks.  After the first two weeks, Mr Kendle did not collect the rent and Mrs Byrnes not press him did to collect the unpaid rent or evict Kym and obtain another tenant.  It was accepted at trial that Kym should have paid $36,150.00 for his occupation the property.

In 2007, Mrs Byrnes and Mr Kendle separated.  In March 2007, Mrs Byrnes assigned her interest in the property to her son Martin for consideration of $40,000. 

Mrs Byrnes and her son commenced a proceedings against Mr Kendle, for, breach of trust and sought relief in the form of a half share of the net proceeds of sale of the Murray Bridge property, with any monies found to be due, as a result of an account for the uncollected rent, to be deducted from Mr Kendle’s share of the net proceeds.

In July 2007 Kym vacated the property and Mr Kendle’s grandson commenced occupation paying rent of $100 per week, which was used by Mr Kendle’s daughter to off-set her expenses in caring for her father.  None of the rent was paid to Mrs Byrnes.

In the District Court, Boylan DCJ considered the case turned on Mr Kendle’s intention in determining whether or not an express trust has been created.  It was held that the court may look at evidence outside the trust deed to determine the intention of the alleged settlor.  The decision was:

(a) A declaration that Mr Kendle held one half of the proceeds of sale on trust for Mr Byrnes;

(b) The claim based on breaches of trust including the alleged failure to collect rent was dismissed; and

(c) that Mr Byrnes and Mrs Byrnes pay Mr Kendle’s costs.

The appeal by Mrs Byrnes to the Full Court of the Supreme Court of South Australia was dismissed.  The Full Court found that a trust had been created, it was held that while Mr Kendle did not have a duty with respect to the recovery of rent and he was not subject to the duties that would normally be imposed on a trustee who rents out a property because Mrs Byrnes had consented or acquiesced in Mr Kendle’s actions as trustee.

In the appeal to the High Court of Australia the key issues were:

(1) Was there a trust created by the 1997 Deed?

(2) If so, what were the duties of Mr Kendle with respect to renting out the property?

(3) Was there a breach of those duties?

(4) If so, did Mrs Byrnes (and her son as assignee) consent to or acquiesce in the breach?

(5) If she did not, what is the appropriate form of relief for the breach of trust by Mr Kendle?

The first question was decided unanimously in favour of Mrs Byrnes.38 Section 29(1)(b) of the Law of Property Act 1936 (SA)39 required a declaration of trust regarding any land or an interest in land, is to be “manifested and proved by some writing signed by some person who is able to declare such a trust”. There was no informality, because the trust was manifested and proved by the words “upon trust” used in the 1989 Deed.

The High Court affirmed the position that the objective theory prevails in respect of trusts, just as it does in respect of contracts.  Gummow and Hayne JJ quoted the following passage from the judgment of Lord Millett in Twinsectra Limited v Yardley40 with approval:

“A settlor must, of course, possess the necessary intention to create a trust, but his subjective intentions are irrelevant.  If he enters into arrangements which have the effect of creating a trust, it is not necessary that he should appreciate that they do so; it is sufficient that he intends to enter into them.”

It was also stated by Gummow and Hayne JJ that:41

“The fundamental rule of interpretation of the 1997 Deed is that the expressed intention of the parties is to be found in the answer to the question, ‘What is the meaning of what the parties have said?’, not to the question, ‘What did the parties mean to say?’ The point is made as follows, with reference to several decisions of Lord Wensleydale, in Norton on Deeds:

‘The word ‘intention’ may be understood in two senses, as descriptive either (1) of that which the parties intended to do, or (2) of the meaning of the words that they have employed; here it is used in the latter sense.’”

French CJ agreed with Gummow and Hayne JJ on this issue.42

The view of Heydon and Crennan JJ was that the principles in contract apply equally to trusts.43

The position now is that the law of deeds, the law of contract, and the law of trusts speak with one voice on this issue: an objective intention prevails over the subjective intention of the parties.

The High Court also found for Mrs Byrnes and her son on the breach of trust claim and she received half of the net proceeds of sale of the property plus half the rent which ought to have been collected, less outgoings paid by Mr Kendle during that time, as compensation for breach of trust.

“Wills and the construction of them do more to perplex a man than any other learning …”

 

Glenn Dickson

Copyright © These materials are subject to copyright which is retained by the author. No part may be reproduced, adapted or communicated without consent except as permitted under applicable copyright law.

Disclaimer This seminar paper is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. Readers should not act on the basis of any matter contained in this seminar paper without first obtaining their own professional advice.

APPENDIX A

                                                   “I give everything to my darling wife Julie”

Footnotes

35. At page 1-5.

36. It appears that it was a home-made Will.

37. In a passage quoted with approval by Gaudron, McHugh, Gummow and Hayne JJ in Associated Alloys Pty Ltd v ACN 001 452 106 (in liq) (2000) 202 CLR 588 at [27].

38. At par [46].

39. Which is similar to section 11 Property Law Act 1974 (Qld)

40. [2002] 2 AC 164 at [71].

41. (2011) 243 CLR 253 at [53].

42. (2011) 243 CLR 253 at [17].

43. (2011) 243 CLR 253 at [102].

44. Roberts v Roberts (1613) 2 Bulst 124 at 130; 80 ER 1002 per Lord Coke CJ.

Mr Morzone, Ms Hogan and Mr Looney

On behalf of all the judges of the Federal Court, but especially those resident in Brisbane, I warmly congratulate you on your attainment of the highest rank attainable at the Bar.

Days like today are very special for the legal profession. By the legal profession I mean the grand profession of lawyers and judges.

For as long as there has been a Bar, with the peculiar exception of the extinct Serjeants, there have only been two ranks of barrister, viz junior and Silk.

This flat structure reflects the egalitarian and meritocratic features of the Bar that, notwithstanding its medieval origins, have characterised it over the centuries of its evolution from the Inns of Court.

You have crossed the only divide, in terms of status which, as a matter of history, divides those barristers and judges who were of the inner bar from the outer barristers.

And crossing that divide is concerned solely with a claim to recognition as belonging to the first rank of barristers by reason, not of heredity or patronage, but solely on the basis of your own proven merits.

Proving your merits, and having them tested in the crucible of legal practice, is a challenge unique among the peacetime professions in its level of difficulty.

Apart from the profession of arms, no other professional has to deal with a live opponent determined to confound one’s best laid plans. Lord Atkin once said of the Bar that it is the only profession in which one goes to work each morning knowing that your workday will involve a highly intelligent individual doing his best to prove to another highly intelligent individual that you are a congenital idiot.

Taking silk is a great achievement for each of you. It means that you have met great challenges of personal dedication, integrity and diligence. You have given faithful services to your clients and to the Courts. That service has not only been competent, it has been distinguished.

It is a great thing to be recognized by the Judges and colleagues as leaders of the profession. We are sure that you will serve with distinction, enjoy such service, and incidentally, manage to keep the wolf from the door, or perhaps do a little better than that.

Your new dignity leads to additional responsibility to the public and the profession.

In any group of people, leaders must emerge and be recognized, simply because groups need leaders. In many groups, leadership is accompanied by authority.

However the Bar is a profession made up of hardy individuals, not actually under authority, and not likely to submit to its defacto exercise.

Thus the leaders of the profession must lead by persuasion and, above all, by example. In this context leadership is not primarily about who runs the Bar Association or who sits at one end of the Bar table. It is much more about the relentless task of maintaining professional standards by example. Your leadership position requires that you set an example of appropriate diligence and behaviour, both in and out of court.

Your leadership role also dictates that you engage actively in professional development. The law has long been recognized as one of the learned professions raising the questions, “What do we mean by ‘learned’?” and “What do we mean by ‘profession’?” This is neither the time nor the place to explore those questions in detail. But clearly, learning is something more than mere technical skill.

Learning involves a broad understanding of the human condition, of its history, its customs, values and culture.

The law is, in the end, about people and how they organise their affairs at the highest and lowest levels. Learning is about the law, but it must also be about the people to whom the law is to be applied and those who seek its protection. You must attend to your own professional development and also assist in the development of others.

A third area of leadership is in the management of the profession. It is very easy to leave this responsibility to others, but the profession needs the support of all of its senior members. You should not seek to avoid this aspect of your new responsibilities.

You will face great challenges in the future; but the letters which now appear after your names are the profession’s guarantee that you are more than up to those challenges.

Mr Morzone, you have worked with our judges. I can claim the pleasure of having appeared with and against you — and I enjoyed the former role more than the latter.

Ms Hogan, your merits have already been noted by the Executive Government of the Federation, and you will soon be joining the Family Court. We wish you every success in your judicial role.

Mr Looney, the judges of this Court have long been impressed by the industry and learning on display in the cases you have conducted in this Court.

You will, no doubt, notice that the cases will get harder and the judges more testing — but perhaps also a little more polite.

But this is not the time to contemplate the rigours that the future holds. It is a time to celebrate. Although we can only offer you tea, we invite you to join us.

The Honourable Chief Justice Keane

 

Synopsis:

Finality in litigation is a tenet of our system of justice. It reflects a need for certainty in social and commercial dealings. However, the realty of adjudication by humans, not machines, commands some latitude.

The desirability of early correction of judicial error, coupled with the cost and delay of securing appellate correction, necessitate trial court mechanisms for displacing or altering judgment and orders (whether interlocutory or final).

In consequence the superior courts in Australia (like most courts founded in a common law tradition) harbour jurisdiction whereby the adjudicating court, in limited circumstances, may vary or set aside orders made by the court after a hearing on the merits.

In the Uniform Civil Procedure Rules 1999 (Qld) those provisions are to be found in rr 388, 667 and 668. The court also harbours inherent jurisdiction.

The focus of this paper is upon rr 667 and 668, and in particular how well they operate to treat judgments or orders where errors of law or fact have ensued.

The jurisprudence in New South Wales1 is well advanced in this sphere and informs the inquiry. So too does the inherent jurisdiction.

The conclusion expressed in this paper is that rr 667 and 668, properly construed, provide reasonable scope for efficient and cost effective treatment of error, but could be improved by amendment to r 667 in terms adopted recently in its NSW analogue.

Finality:

Finality (like natural justice) is a core element of the rule of law.

In Burrell v R,2 the High Court plurality3 wrote:

[15] … (I)t is important to recognise that underpinning consideration of the issues presented in this matter are fundamental principles about finality of litigation. As was said in D’Orta-Ekenaike v Victoria Legal Aid: (2005) 223 CLR 1 at 17 [34]; [2005] HCA 12 . “A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.” That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud: DJL v Central Authority (2000) 201 CLR 226 at 244—245 [36]—[37], and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded.

[16] … (T)he principle of finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, Judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is almost always costly.

Relevant Rules:

The relevant provisions are UCPR (Qld) rr 388, 667 and 668. The relevant UCPR (NSW) provisions are rr 36.15 and 36.16. These are set out in annexure ‘A’ hereto. UCPR (NSW) r 36.17, in effect, is in the same terms as UCPR (Qld) r 388 ‘slip rule’.

Saliently, UCPR (Qld) (UCPR (NSW) likewise) contains provision in r 5, relevantly:

The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense … These rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating a purpose of these rules.

Inherent Jurisdiction:

In Frith v Schubert4 Peter Lyons J summarised the inherent jurisdiction applicable prior to entry of judgment:

[10] In Autodesk Inc v Dyason (No 2)5, the High Court held that, at least prior to its formal entry, that court had jurisdiction to recall a judgment which had been pronounced, if it had been pronounced against a person who, without fault on the part of that person, had not had the opportunity to be heard as to why that judgment should not be pronounced.6 However, Mason CJ expressed the view that the jurisdiction was broader.7 In De L v Director General, NSW Department of Community Services (No 2),8 a joint judgment of five members of the High Court recognised the broader jurisdiction, but noted that a heavy burden was cast upon an applicant for reopening, and the applicant must show that such a course is required “without fault on his part”.9

What of the position after entry of judgment? A useful entry in the discourse is to be found in Newmont Yandal Operations Pty Ltd v The J Aron Corporation & Anor.10 The leading judgment there was delivered by Spigelman CJ (Santow and Handley JJA agreeing).

The only relevant UCPR (NSW) rule in play there was the slip rule in r 36.17. The reason probably was that r 36.16 (3A) — (3C) had not then been enacted. The decision probably spawned such enactment.

The judge below (the trial judge recused himself) had set aside an entered order and substituted another order to avoid what, in effect, were unintended consequences of an intended order made by another judge in the Equity Division concerning the corporate interest of the parties in a series of proceedings. The appellant party sought to argue that there was no jurisdiction. The appeal was unsuccessful.

Referring to Re Swire; Mellor v Swire11, Ivanhoe Gold Corporation Ltd v Symonds12 and DJL v The Central Authority13, the following propositions were enunciated:

• the inherent jurisdiction to vary, modify or extend an order may be reflected in, but ought not be confined by the ‘slip rule’.
• the ‘slip rule’ ought be construed through the focus of the modern UCPR (NSW) provision as to efficiency and cost (that is the UCPR (Qld) r 5 analogue).
• whether under the inherent jurisdiction or the ‘slip rule’, where the order expresses a matter contrary to the judge’s intention, then the court had jurisdiction to vary, alter or extend the same.
• the ‘slip rule’ and inherent jurisdiction also permitted recall of a regularly entered order the trial judge intended to make, but only where that order had unforseen or unintended legal consequences, including consequences for other proceedings.
• the judge who made the order overwhelmingly is the preferable person to correct it, recusal ordinarily causing unnecessary delay and additional expense.

The former Chief Justice wrote:

[79] This inherent jurisdiction has been expressly affirmed in DJL. Accordingly, the Supreme Court has jurisdiction to correct a duly entered judgment where the orders do not truly represent what the Court had intended to pronounce. This principle has been applied on numerous occasions. (See e.g. Hogarth’s Estate supra at 21.5 per Burbury CJ; Coppins v Helmers ; Brambles Constructions Pty Ltd (Third Party) [1969] 2 NSWLR 279 at 281 per Herron CJ, Sugerman and Mason JJA; Gikas v Papanayiotou [1977] 2 NSWLR 944 at 953—984 per Needham J; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 28F-G per Sheller JA; Re Future Life Enterprises Pty Ltd (1994) 33 NSWLR 559 at 562—563 per McLelland CJ in Eq)

[80] The formulation approved recently in DJL , should be accepted as authoritative. That formulation, I note, is in quite different terms to the slip rule. There may be other aspects of the inherent jurisdiction which also overlap with the slip rule, but it is unnecessary to consider them.

Newmont was referred to with approval recently by the Queensland Court of Appeal but as a case confined to its peculiar facts.14

NSW Jurisprudence:

The UCPR (NSW) provisions15 have been the subject of extensive consideration. The procedural concept goes by the title ‘re-opening’.

It is noteworthy that r 36.16 allows of:

• in every instance that the relevant judgment or order may be either set aside or varied.
• a period of 14 days from any judgment or order for application for re-opening (irrespective of prior perfecting by entry).

In the seminal decision of Wentworth v Rogers16, Barrett J17, summarised the relevant principles:

[7] On the application for re-opening of the hearing, senior counsel for the second plaintiff referred to a number of the High Court decisions on re-opening after judgment but before entry of orders. The first plaintiff, who again appeared in person, made reference to a great number of authorities. While cases on this subject as it affects appellate courts are no doubt instructive, the fact remains that treatment of the issue at that level is affected by considerations which do not apply when it is sought to have proceedings determined by a single judge at first instance re-opened after judgment. In R v Nitin Giri (No 2) [2001] NSWCCA 234, Heydon JA distilled from High Court authority (Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672, State Rail Authority (NSW) v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29, Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300) the three issues central to the re-opening jurisdiction which the High Court regarded as exercisable by appellate courts in only “extremely rare” or “quite exceptional” circumstances and then only with “great caution”:

• first, whether the appellant has shown that, without accident or fault on the appellant’s part, he or she has not been heard on a relevant matter;
• second, whether the appellant has shown an error in the court’s reasoning because of a misapprehension of the facts; and
• third, whether the appellant has shown an error in the court’s reasoning because of some misapprehension of the relevant law.

(See also, in particular, Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 and De L v Director General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207.)

…

[9] It seems to me that the relevant principles, as they apply in a case such as the present, can be summarised in one basic proposition, namely, that a single judge whose decision is susceptible to appeal through readily available channels (with or without any preliminary need for leave to appeal) should allow re-opening after judgment where it is obvious to that judge that the decision has miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court. What is highly undesirable is that the first instance judge should be cast in the role of hearing what amounts to an appeal against his or her own decision . I adopt, in that connection, the following observation of Rix LJ in Compagnie Noga D’Importation et D’Exportation SA v Abacha [2001] 3 All ER 513:

“I do not wish to say anything against the usefulness of the reconsideration jurisdiction, within its proper limits. I have made use of it myself. However, it is in the nature of the legal process that, once judgment has been rendered, analysis thereafter becomes clarified and refined, and citation of authority is applied to the findings made at first instance so as to illuminate that clarification and refinement of analysis of which I speak. But that is the function of the appeal process. In my judgment, to grant this application that I reconsider my judgment would subvert the appeal process itself. In doing so, it would not answer the interests of justice, but would be the antithesis of justice according to law. There are of course cases where an error of fact or law may be too clear for argument. The best test of that is perhaps – but not necessarily – where the judge himself identifies the error which concerns him. In such a case, it is better that the error is corrected without imposing on the parties the need for an appeal. But no parallel to Noga’s application has been cited to me. It is in my judgment wrong for a judge to be treated to an exposition such as would be presented to a court of appeal. If in such circumstances a judge should be tempted to open up reconsideration of his judgment, an appeal would not be avoided, it would be made inevitable. Every case would become subject to an unending process of reconsideration, followed by appeal, both on the issue of reconsideration and on the merits.”

(emphasis added)

By reference to Wentworth v Wentworth18, his Honour usefully identified instances where review had been allowed19:

• where the reasons for judgment inadvertently did not deal with important matters argued by counsel at the hearing, and where an appeal to correct this would involve inevitable delay.
• where the reasons involved infelicity of expression or ambiguous statements which could be corrected by the trial judge upon bringing in short minutes.
• where reopening was in respect of an order which was consequential upon a finding of error of law, the trial judge had no intention that the order have the effect that further evidence could be called, and where the possible effect of the order had not been the subject of argument at the hearing.
• where on a strike out application a party had misunderstood the basis of a pleading and failed to address the issue in argument.
• where excision of a paragraph from a judgment was sought where a trial judge had mistakenly referred in reasons to a situation which did not exist.
• where the trial judge recalled the order after deciding it was wrong immediately after making it.

Such re-opening principles were approved recently at appellate level in Kopas v Celermajer Holdings Pty Ltd.20 There due to shallow argument in a lease dispute before the trial judge (there was a late change of counsel), there ensued a decision founded on a legal basis contrary to authority. The trial judge corrected this on re-opening. An appeal apropos the re-opening was dismissed essentially on the pragmatic basis that if the judge was right the appellant could have no quarrel, but if wrong then the matter could be corrected on appeal.21 The judge’s altered view was found to be sound. 

UCPR (Qld) rr 667 and 668 afford a measure of flexibility in the management of litigation, without significant departure from the juridical tenet of finality. The inherent jurisdiction provides cognate procedural support.

UCPR Qld) 667:

This rule only applies to judgments on the merits, not default judgments: subr (3).

In Frith v Schubert22, Peter Lyons J wrote:

[13] It was not suggested, and there is no reason to think, that the provisions of these rules replace the inherent jurisdiction, referred to earlier.

[14] There are clearly two different powers conferred by subrr (1) and (2) of r 667. That is apparent from the fact that subr (1) includes a power to vary, as well as a power to set aside; and this sub-rule includes a time limit, whereas subr (2) expressly provides for setting aside an order “at any time”.

[15] The exercise of the powers found in r 667(2) and in r 668(3)(b) depend upon the satisfaction of stated conditions. No such conditions are identified for the exercise of the power conferred by r 667(1). It would seem to follow that r 667(1) confers a general discretion on a court to vary or set aside an order. The exercise of that discretion cannot be confined by the conditions set out in rr 667(2), or 668(1).

[16] Counsel who appeared for Ms Frith, nevertheless, accepted, in my view correctly, that considerations relating to the public interest in the finality of litigation are relevant to the discretion conferred by r 667(1).

Subrule (2)(a) and (b) address the infrequent circumstances of fraud and adjudication in absentia respectively. Paragraphs (c) and (f) deal with orders in equity which often require subsequent moulding or substitution. For example, a party gaining decree of specific performance may subsequently apply for leave to elect for a damages remedy on account of ongoing repudiation.23

Subrule (2)(d)24 was addressed and exemplified in Queensland Pork Pty Ltd v Lott25 in circumstances where judgment was given for a certain sum which the judge believed to be correct and obviously he intended be expressed. On appeal, Cullinane J (McMurdo P and Jones J agreeing) wrote at [19]:

I think the contention of senior counsel for the respondent that the matter falls within r 667(2)(d) is also correct. This permits a court to set aside an order if the order does not reflect the court’s intention at the time the order was made. Here it seems clear that his Honour at all times intended that judgment would be entered for the respondent in the sum for which the respondent had made out an entitlement after taking into account the credit and off-sets to which I have referred and was under the mistaken belief that the parties had agreed upon what that entitlement was and for reasons which cannot be now known arrived at the figure for which judgment was first pronounced … I also think that in these circumstances the court would have an inherent power to correct the judgment. See Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300. The first judgment had not been taken out before His Honour dealt with the matter again.

In my view r 667, in its present form, is performing its role tolerably well but could be improved in two respects.

First, the jurisdiction to make orders in subr (2) should be extended to “or vary”. Each of the circumstances for invoking jurisdiction in that subrule, in the particular case, as a matter of discretion, may better entail varying an order made rather than setting it aside.

Second, additional subrules ought be added (reflecting subr (3A) to (3C) of UCPR (NSW) r 36.16) providing for a strict 14 days to make a subr (1) application for setting aside or variation of a judgment or order so as to:

• allow of the parties an opportunity to read and reflect upon the reasons and orders.
• furnish an equivalent period of time for the court to do likewise.

Application for re-opening (or of the court’s own motion) can then ensue if thought apt, not confined to subr (2) grounds.

The NSW re-opening jurisprudence is apt for adoption in Queensland.

UCPR (Qld) r 668:

In essence, this rule is designed to deal with two circumstances:

• the modification of an order to cater for the specific circumstance arising from its form.26
• facts and circumstances arising before or after judgment which are best the subject of an application in the trial division rather than being raised as new facts on appeal.

As to the latter r 766(2) provides that in the appeal division further evidence may be given without special leave but the issue is one of difficulty, in particular where the evidence arose before the judgment below.27

In Frith v Schubert28, Peter Lyons J wrote:

[23] Analogies have been drawn between this rule (and its predecessor), and a decision on an appeal to permit a party to present evidence which was available, but not discovered before trial.29 This rather strongly suggests that r 668(1)(b) is not satisfied if facts were known to a party at the time the order was made, but not presented to a court. Any other view would be inconsistent with the general principle that a party is expected to present the entirety of its case relevant to the issues for determination, at the hearing conducted for the determination of those issues.30 Such a view would be inimical to the achievement of finality in litigation. It can hardly have been the intention of those responsible for the drafting of the rule.

This statement reflects the position as it obtains where fresh evidence is sought to be introduced on appeal.

The rule requires no amendment to reflect the abovementioned matters. Where the rule could require amendment is in respect of the use of the language “entitling” and “entitled”.

The decisions in KGK Constructions and Rankin v Agen Biomedical Limited31 are to the effect that these terms have a wider application. The facts that come to light need not be of a character as to create an absolute entitlement. Rather it suffices that they “create an entitlement to favourable consideration”.32

While there is temptation to posit amendment of r 668 to reflect this jurisprudence, it is difficult to identify language which would readily conduce to that end. Perhaps as far as one could go is to opine that in r 668(1)(b), the language “would have entitled” ought be amended to “may have entitled”.

Conclusion

The enactment of r 5, providing for consideration of cost efficiency and minimisation of delay, conduces to a more liberal construction of such provisions.

Judgments or orders, however, are not lightly to be disturbed. A re-opening should not become an opportunity for fresh argument or re-argument, nor should the same ordinarily displace the proper function of an appeal to correct errors in the trial division.

Measures to improve the drafting of r 667 are canvassed herein. In essence they reflect the current drafting of UCPR (NSW) r 36.16 subr (3A) to (3C), and adoption of the significant jurisprudence r 36.16 has generated.

Instructive apropos rr 667(1) and 667(2)(b) is the principle enunciated in such NSW jurisprudence that:33

… a single judge whose decision is susceptible to appeal through readily available channels … should allow a reopening after judgment where it is obvious to that judge that the decision has miscarried, and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court.

R J Douglas S.C.   Annexure ‘A’

RELEVANT UCPR (QLD) RULES

388 Mistakes in orders or certificates

(1) This rule applies if—

(a) there is a clerical mistake in an order or certificate of the court or an error in a record of an order or a certificate of the court; and

(b) the mistake or error resulted from an accidental slip or omission.

(2) The court, on application by a party or on its own initiative, may at any time correct the mistake or error.

(3) The other rules in this part do not apply to a correction made under this rule.

667 Setting aside

(1) The court may vary or set aside an order before the earlier of  the following—

(a) the filing of the order;

(b) the end of 7 days after the making of the order.

(2) The court may set aside an order at any time if—

(a) the order was made in the absence of a party; or

(b) the order was obtained by fraud; or

(c) the order is for an injunction or the appointment of a receiver; or

(d) the order does not reflect the court’s intention at the time the order was made; or

(e) the party who has the benefit of the order consents; or

(f) for a judgment for specific performance, the court considers it appropriate for reasons that have arisen since the order was made.

(3) This rule does not apply to a default judgment.

Note —

For a default judgment, see rule 290.

668 Matters arising after order

(1) This rule applies if—

(a) facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or

(b) facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order.

(2) On application by the person mentioned in subrule (1), the court may stay enforcement of the order against the person or give other appropriate relief.

(3) Without limiting subrule (2), the court may do one or more of the following—

(a) direct the proceedings to be taken, and the questions or issue of fact to be tried or decided, and the inquiries to be made, as the court considers just;

(b) set aside or vary the order;

(c) make an order directing entry of satisfaction of the judgment to be made.

RELEVANT UCPR (NSW) RULES

36.15 General power to set aside judgment or order

(cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3)

(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

36.16 Further power to set aside or vary judgment or order

(cf SCR Part 40, rule 9)

(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(2) The court may set aside or vary a judgment or order after it has been entered if:

(a) it is a default judgment (other than a default judgment given in open court), or

(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or

(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.

(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it:

(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or

(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.

(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

(3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.

(3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).

(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.  

Footnotes

1. Decided in respect of the Uniform Civil Procedure Rules 2005 (NSW) and the predecessor thereof.
2. (2008) 238 CLR 218.
3. Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ.
4. [2010] QSC 444.
5. (1983) 176 CLR 300.
6. Autodesk at 301, 302, 308, 312, 317.
7. Autodesk at 302; see also 322 per Gaudron J.
8. (1997) 190 CLR 207.
9. at 215.
10. (2007) 70 NSWLR 411.
11. (1885) 30 ChD 239 at 243, 246, 247.
12. (1906) 4 CLR 642.
13. (2000) 201 CLR 226.
14. Hammercall Pty Ltd v Robertson [2011] QCA 380 at [31] — [34].
15. and predecessors.
16. [2002] NSWSC 921.
17. As Barrett JA then was.
18. [1999] NSWSC 638.
19. Wentworth v Rogers at [9].
20. [2012] NSWCA 53.
21. at [24].
22. [2010] QSC 444.
23. Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 at 260.
24. ‘the order does not reflect the court’s intention at the time the order is made’.
25. [2003] QCA 271.
26. KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 QdR 13.
27. Horne v Commissioner of Main Roads [1991] 2 QdR 38 at 41.
28. [2010] QSC 444.
29. See Breen v Lambert, unreported, Thomas J, SC No 4547 of 1988, 16 August 1991, referred to in IVI Pty Ltd Baycrown Pty Ltd [2005] QSC 330 at [22]; and IVI. See also Crime and Misconduct Commission v Bioletti [2006] QSC 159 at [10].
30. See Henderson v Henderson (1843) 3 Hare 115 ; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 , 598.
31. [1999] 2 QdR 435.
32. see Rankin at [7].
33. Wentworth v Rogers, op cit.

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