Application of Higgins [2023] NSWSC 689

Supreme Court of NSW|2023-06-22|Before: Hallen J

Solicitors: Mills Hebbard Moore (Plaintiff) File Number(s): 2020/00278705 Publication restriction: Nil

Introduction

These proceedings concern the administration of the estate of Sheree Jane Higgins ("the deceased"), an Indigenous person, and the claim brought by her mother, Emily Higgins, for what is called "a distribution order" under Part 4.4 of the Succession Act 2006 (NSW) (the Act).
There have been three earlier proceedings in New South Wales in which the Court has been called upon to consider an application for a distribution order in respect of an Indigenous intestate. The cases that have dealt with the topic are the Court's first judgment on an application for a distribution order that concerned an intestate estate of an Aboriginal man who had been adopted by a non-Indigenous couple, and the competing claims made by the intestate's three Indigenous half-sisters and his two non-Indigenous adoptive half-sisters: Re Estate Wilson, deceased (2017) 93 NSWLR 119; [2017] NSWSC 1 (Lindsay J); a claim made by a "kinship brother" in circumstances where if an order had not been made, the deceased's estate would have passed to the State, bona vacantia, under Part 4.5 of the Act: The Estate of Mark Edward Tighe (2018) 17 ASTLR 304; [2018] NSWSC 163 (Kunc J); and one which concerned competing claims on the bounty of an Indigenous intestate made by the parents of the deceased within the applicable Indigenous community and competing interpretations of the customary law: Re Estate Jerrard, deceased (2018) 97 NSWLR 1106; [2018] NSWSC 781 (Lindsay J).

The Proceedings

The deceased died on 31 March 2020, aged 31 years, leaving movable property located in NSW.
On 27 November 2020, the Plaintiff filed a Summons for Administration, seeking letters of administration and that the administration bond be dispensed with, having established that the deceased died intestate, without a spouse and without issue.
By her Amended Summons filed on 22 June 2022, the Plaintiff, who is the mother of the deceased, made an application under the provisions of Part 4.4 of the Act for a "distribution order" to vary the operation of the general rules (found in Parts 4.2 and 4.3 of the Act) governing the distribution of an intestate estate. In broad terms, she sought an order, pursuant to s 134(1) of the Act, that the entirety of the deceased's intestate estate be distributed to her, alone, under the laws, customs, traditions, and practices, of the Indigenous community or group to which the Indigenous and intestate deceased belonged or any scheme for the distribution of the estate of an Indigenous person, rather than under the operation of the rules of intestacy.
On 1 November 2022, this Court made an order granting Letters of Administration of the deceased's intestate estate to the Plaintiff. The Court, when making the order for administration, noted her written undertaking, dated 25 October 2022, to not distribute the estate of the deceased, pending the determination of the application for a distribution order.
The Registry has been unable to complete the issue of Letters of Administration as the Court file, including the orders, has been required in this part of the proceedings. However, the grant should be made when the file is returned to the Senior Deputy Registrar upon the making of orders and the publication of these reasons.
As required by s 133(3) of the Act, the application was made within 12 months of the grant of administration in circumstances where the intestate estate has not been fully distributed.
The Plaintiff submitted, and the evidence confirms, that as the deceased died leaving no spouse, and no issue, her estate, under the operation of s 128 of the Act, would vest in the deceased's parents, and, if both survive, it will vest in equal shares.
The biological father of the deceased is said to be Stephen Farkas. He has played no part in the proceedings. The proceedings have been listed on several occasions in the Succession List. On no occasion, including on 30 January 2023, has there been an appearance by, or on behalf of, Mr Farkas.
Despite significant efforts, to which reference will shortly be made, he has not been able to be located. There is evidence of the numerous searches that have been made to locate him.
If the Plaintiff's submissions are accepted, instead of the deceased's parents being entitled to the whole of the intestate estate in equal shares, the Plaintiff, pursuant to the distribution order, would receive the whole of the deceased's intestate estate.
Counsel for the Plaintiff over time, filed three sets of written submissions to the Court, the first filed on 30 August 2022, the second filed on 14 October 2022, and the third filed on 25 January 2023.
In a directions hearing, on 30 March 2023, the Court raised with counsel the question whether the real basis of the order sought was a form of order derived from Re Benjamin; Neville v Benjamin [1902] 1 Ch 723. In supplementary written submissions, dated 31 March 2023, counsel submitted: "…such an order is less preferable ... Such an order does not vary or destroy beneficial interests, and so does not prevent Steven Farkas (if he subsequently comes forward) from pursuing a remedy against a recipient of the deceased's assets: Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532 at [23]-[24], citing Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188 at [75]-[76]. In such a circumstance and absent any order under s 134 being made, Farkas would have an entitlement to Sheree's intestate estate, in equal shares with Emily, pursuant to s 128 of the Succession Act."
In view of the detailed written submissions provided by counsel, and upon his application, the matter was then referred to Chambers for consideration on the papers. I am most grateful to Mr D Birch, counsel for the Plaintiff, and those instructing him, for the detailed submissions which I have found extremely helpful.

Jurisdictional basis for the application

On 19 April 2023, this Court requested the Plaintiff to provide submissions explaining the jurisdictional basis for the application of a distribution order being made in New South Wales and whether the Court should set aside the order granting administration of the deceased's estate to the Plaintiff considering that the grant had not yet been issued.
On 24 April 2023, the Court was informed that the Plaintiff intended to provide an additional affidavit addressing the jurisdictional basis for the application for a distribution order to be made in New South Wales. On 11 May 2023, a request for an extension of time until 16 May 2023 to file the additional affidavit was made and granted. When it had not been received, this Court informed the Plaintiff that the matter would be re-listed unless the affidavits were received by 12:00 p.m. on 24 May 2023.
On 24 May 2023, the Plaintiff provided a summary of the Plaintiff's submissions and informed the Court that additional evidence and submissions would be provided by no later than 15 June 2023. The summary was in the following terms: "…In summary, the plaintiff intends to submit that: (a) The assets of the estate are movable assets located within NSW, being funds held by the NSW Trustee and Guardian on behalf of the deceased. (b) This Court has jurisdiction to appoint her as administrator of [the deceased's] estate because the assets of the estate are located within NSW. (c) [The deceased] was domiciled in NSW at the time of her death. [Her] 'domicile of origin' was NSW, as that was her mother's domicile and was the place of her birth. When she was 5 years old, she suffered a catastrophic injury in a car accident, involving severe and permanent brain damage. [The deceased] moved with her mother to Victoria when she was 12 years old, and resided in a nursing home in Victoria from 18 years old until her death at 31 years old. However, as a result of her impaired capacity, [the deceased] could not and did not acquire a domicile of choice in Victoria. (d) Accordingly, at the time of [the deceased's] death, she was domiciled in NSW. The consequence is that the question of succession to [the deceased's] estate is to be determined according to the law of NSW; and [the Plaintiff] is entitled to bring an application under Part 4.4 of the Succession Act. (e) In the alternative, the provisions of Part 4.4 of the Succession Act have displaced the common law position that succession to movable property is determined according to the law of the deceased's domicile, and [the Plaintiff] is entitled to bring an application in respect of [the deceased's] estate on the basis that the assets of the estate are located within NSW and she otherwise satisfies the jurisdictional requirements of an application under Part 4.4. (f) In the further alternative, if the Court determines that the succession to [the deceased's] movable property is determined according to the law of Victoria (the deceased's domicile), then under Victorian law she is entitled to a half share of the estate under s 70ZH of the Administration and Probate Act 1958 (Vic), and she seeks a Benjamin order in respect of the other half.
On 29 May 2023, the Court received more detailed submissions addressing the jurisdictional basis for the application for a distribution order. I turn to those submissions.
In the case of intestate succession, the law to be applied in relation to movable property is the law of the domicile of the intestate at the time of death. In Nygh's Conflict of Laws in Australia (9th ed, 2014) at [38.4]-[38.7] the position of movable and immovable property is described in this way: "Movables 38.4 It has been trite law, at least since Pipon v Pipon (1744) Amb 25; 27 ER 14, that the succession to movable property on intestacy is determined by the law of the domicile of the intestate at the time of death: Bremer v Freeman (1857) 10 Moo PC 306 at 358; 14 ER 508 at 527. This means that an Australian court having jurisdiction in the state or territory where there are assets of the deceased, must distribute those assets among the persons who are entitled to receive them under the law of the deceased's last domicile. ... Immovables 38.7 In relation to immovable property, the lex situs determines the beneficial succession on intestacy no matter what the domicile of the intestate. Thus, if a person dies domiciled abroad leaving immovable assets within the forum, those assets must be distributed among the persons entitled to them under the law of the forum: Re Ralston [1906] VLR 689. (Footnotes incorporated as text)
Also see, Lewis v Balshaw (1935) 54 CLR 188 at 193; [1935] HCA 80; Re Crook (1936) 36 SR (NSW) 186 at 192-3; Re Berchtold; Berchtold v Capron [1923] 1 Ch 192 at 199.
Thus, it was necessary, first, to determine the deceased's last domicile in order to determine what law is to be applied in relation to the distribution of the assets of her intestate estate.
In Iyengar v Commissioner of Taxation (2011) 85 ATR 924; [2011] AATA 856 at [93]-[96], Senior Member Walsh wrote: "Under the common law, "domicile" has been defined as the legal relationship between an individual and a territory with a distinctive legal system that invokes that system as the individual's personal law: Henderson v Henderson (1965) 1 All ER 179 at 180-181. A person's "domicile" is the place that is considered by law to be his or her permanent home: Udny v Udny (1869) LR 1 Sc & Div 441. A person may only have one "domicile" at the one time, whereas a person may be 'resident' in two or more places. The law requires that a person have a "domicile": see Re Craignish, Craignish v Hewitt (1892) 3 Ch 180, at p 192 (CA) and Bell v Kennedy (1868) LR 1 Sc & Div 307 (HL). There are three types of domicile: (i) domicile of origin; (ii) domicile of choice; and (iii) domicile by operation of law. Since the introduction of [the Domicile Act] in 1982, "domicile by operation of law" has been virtually eliminated for the purposes of the Australian income tax law. The primary common law rule is that a person acquires a "domicile of origin" at birth. A person retains the "domicile of origin" unless and until he or she acquires a "domicile of choice" in another country, or until he or she acquires another "domicile by operation of law". The common law attributes to everyone at birth a "domicile of origin", which is generally the country of his or her father's permanent home. The actual place of birth is generally immaterial: Somerville v Lord Somerville (1801) 5 Ves 750 at 787. A person's "domicile of origin" is retained until the acquisition of a "domicile of choice" (Bell v Kennedy and Somerville v Lord Somerville), or until some other domicile is attributed to that person by operation of law. Expressions of intention of 'domicile' cannot prevail against a course of conduct leading to a contrary inference: Ross v Ross (1930) AC 1; In the Estate of Fuld (No 3) 1968 P 675 at 692; Re Liddell-Grainger's Will Trusts and Dormer v Liddell-Grainger (1936) 3 All ER 173."
The rule at common law was that the domicile of origin of an illegitimate child depends on the mother: Potinger v Wightman (1817) 36 ER 26; Udny v Udny (1869) LR 1 Sc & Div 441 at 457-8.
In O'Donnell v O'Donnell [2022] NSWSC 1742, Robb J wrote at [138]-[139], [141]: "The classical statement of the principle governing the acquisition of a domicile of choice was made by Lord Westbury in Udny, beginning as follows at 458: Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicil, and not a definition of the term. In a great many of the reported cases, the enquiry is whether a person who has a domicile in one country has acquired a new domicile of choice in the circumstances in which the person has moved residence to a new country. The question is whether the person who has changed his or her country of residence has formed the intention necessary to acquire a domicile of choice in the new country of residence…the issue might be significantly more challenging where the person resides in a number of states and territories of a union (such as Australia) where the movements are frequent and the differences in the content of the legal systems are minimal in relative terms." … Lord Westbury's principle was more clearly set out by Ligertwood J in In re Cartier, Deceased [1952] SASR 280 (Cartier) as follows (footnotes omitted): The fundamental principles relating to domicile were stated by Lord Westbury in Udny v Udny. Using his exact words, I shall state them in a series of propositions, all of which are material to the determination of the question before me: - "(1) It is a settled principle that no man shall be without a domicile, and to secure this result the law attributes to every individual as soon as he is born the domicile of his father if the child be legitimate and the domicile of the mother if illegitimate. (2) This has been called the domicile of origin and is involuntary. (3) Other domiciles, including domicile by operation of law, are domiciles of choice. For as soon as an individual is sui juris it is competent to him to elect and assume another domicile, the continuance of which depends upon his will and act. (4) When another domicile is put on, the domicile of origin is relinquished and remains in abeyance during the continuance of the domicile of choice. (5) As the domicile of origin is the creature of law and independent of the will of the party, it would be inconsistent with the principles upon which it is by law created and ascribed to suppose that it is capable of being by the act of the party entirely obliterated and extinguished. It revives and exists whenever there is no other domicile, and it does not require to be regained or reconstituted animo et facto in the manner which is necessary for the acquisition of a domicile of choice. (6) Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time: (a) There must be a residence freely chosen and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness. (b) It must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation. (c) Residence originally temporary may afterwards become general and unlimited, and in such a case as soon as the change of purpose or animus manendi can be inferred, the fact of domicile is established. (7) The domicile of origin may be extinguished by act of law, as, for example, by sentence of death or exile for life, which puts an end to the status civilis of the criminal, but it cannot be destroyed by the will and act of the party. (8) Domicile of choice, as it is gained animo et facto, so it may be put an end to it in the same manner. (a) An acquired domicile may be effectively determined by unequivocal intention and act. (b) When it is so determined, the domicile of origin revives until a new domicile of choice be acquired."
The Plaintiff submitted, in the present circumstances, noting the Plaintiff was born in Deniliquin, a town in the Riverina region of New South Wales, that the deceased's domicile of origin would be New South Wales.
Section 8 of the Domicile Act 1979 (NSW) relevantly provides: 8 Domicile of certain children (1) In this section: (a) child means a person under the age of 18 years who is not, and has not at any time been, married, and (b) references to the parents of a child include references to parents who are not married to each other. (2) Where, at any time, a child has his or her principal home with one of the child's parents but the parents are living separately and apart or the child does not have another living parent, the domicile of the child at that time is the domicile that that parent has at that time and thereafter the child has the domicile that the parent has from time to time or, if that parent has died, the domicile that that parent had at the time of death. … (5) Where a child has a domicile by virtue of subsection (2) or (3) immediately before the child ceases to be a child, the child retains that domicile until the child acquires a domicile of choice.
The Plaintiff submitted that since birth, the deceased had lived with the Plaintiff in her principal home. Her parents also lived separately. The deceased and the Plaintiff lived in New South Wales until about 2003.
Counsel further submitted that even though, in 2003, the deceased and the Plaintiff moved to Echuca, a town in Victoria, the Court should not find that there was any intention, on the part of the Plaintiff, to change her domicile. He submitted that the Plaintiff moved frequently between various towns in New South Wales and Echuca throughout her life up to and including 2006. He argued that the move to Echuca in 2003 was not any more significant than any of their other decisions to move location.
He also submitted that the move to Echuca in 2003 was one of the most insignificant moves a person could make while still moving between states in Australia, noting that the Plaintiff's family merely moved from one side of the Murray River to the other and that the Plaintiff continued to attend the same school. He added that the local Aboriginal community comprised members in both Moama and Echuca, which both fall within the traditional Yorta Yorta lands.
Accordingly, by reference to s 8 of the Domicile Act, her domicile would not have changed. In any event, the deceased was 18 on 31 July 2006, meaning that she no longer met the criteria of a "child" in s 8(1) of the Act and therefore s 8(2) of the Act does not apply.
Section 9 of the Domicile Act relevantly provides: 9 Intention for domicile of choice The intention that a person must have in order to acquire a domicile of choice in a country is the intention to make his or her home indefinitely in that country.
In O'Donnell v O'Donnell, Robb J also wrote, at [163]: "…there is a sense of gravity in the process of changing domicile that involves more than a change of residence that is shown by events to have been permanent. There is a concurrent element of intention to remain indefinitely in the new place of residence that justifies a finding of an intention to submit to the new legal system as the source of the person's personal law. The existence of the relevant intention may be inferred as a matter of fact from long-term residence."
Section 7 of the Domicile Act provides: 7 Capacity to have independent domicile (1) A person is capable of having an independent domicile if: (a) the person has attained the age of 18 years, or (b) the person is, or has at any time been, married, and not otherwise. (2) Subsection (1) does not apply to a person who, under the rules of law relating to domicile, is incapable of acquiring a domicile by reason of mental incapacity.
Turning to s 8(5) of the Act, the key issue is whether the Plaintiff acquired a domicile of choice. This turns on whether the Plaintiff had the requisite intention to make Echuca, Victoria her "permanent" home. She had suffered severe and permanent brain damage in an accident in 1993 and had been declared to be incapable of managing her affairs. She could not have formed the necessary intention to make Echuca her permanent home because she lacked the capacity to form such intention.
A person whose decision-making ability is impaired cannot acquire a domicile of choice by her, or his, own actions, and instead, retains her, or his, existing domicile for the duration of the impaired capacity: Kertesz v Kertesz [1954] VLR 195 at 197; Hepburn v Skirving (1861) 9 WR 764; FDN [2011] QCAT 325 at [47]; Re NBL [2019] NSWCATGD 5 at [56]. "The rationale is that acquisition and abandonment of a domicile of choice require the exercise of will and a person with impaired capacity may be "unable to exercise any will": JC [2012] QCAT 609 at [10]; Urquhart v Butterfield (1887) 37 Ch D 357 at 382.
The deceased's estate was managed by the then Protective Commissioner, and more recently, by the NSW Trustee and Guardian (NSWT&G) until the time of her death.
In the alternative, it was submitted that even if the Court had found that the deceased was not domiciled in New South Wales, Part 4.4 of the Act has displaced the common law position, and, thus, the Plaintiff could still apply for an order under s 134 of the Act as the deceased left movable property in New South Wales, being the fund held by the NSWT&G on behalf of the deceased.
In all the circumstances, I am satisfied that the Court has jurisdiction to deal with the matter.

Background Facts

I have taken what follows from the 16 affidavits that have been filed and read, having been referred to in the written submissions.
The Plaintiff is an Aboriginal woman and a member of the Wiradjuri Yorta-Yorta community, from central New South Wales. After she left school, she lived in Leeton, Wagga Wagga, Deniliquin, and Echuca. She is currently 53 years of age.
The deceased was an Aboriginal woman who became a member of the Indigenous community at Echuca, Victoria.
In late 1987, the Plaintiff was in a brief relationship with Mr Farkas (although she is not sure of the spelling of his name). She became aware that she was pregnant in early December 1987. Mr Farkas had been the only person with whom she had sexual intercourse during the preceding eight months.
The Plaintiff also gave evidence that, on being informed of the pregnancy, Mr Farkas denied paternity and that since then, she has had no, or very limited, contact, with him. Mr Farkas never made any child support payments to the Plaintiff for the benefit of the deceased.
She also gave evidence that the deceased had never had any contact with Mr Farkas, and that she had never asked the Plaintiff about him, except once, when the deceased was about five years old.
On or about 27 December 1993, at the age of five years, the deceased was badly injured in a motor vehicle accident. She suffered injuries including severe, and permanent, brain damage. The intellectual disabilities due to her brain injury resulted in an inability to read and write and she had very poor memory and understanding.
Following the accident there were extensive stays in various hospitals. Then, the Plaintiff, the deceased, and the Plaintiff's children lived in Leeton. The deceased attended a special school for children with disabilities in Leeton. In about 1997 or 1998, the family moved to Deniliquin for a couple of years. Afterward, in about 2000, the family moved to Moama. The deceased attended Echuca Specialist School during the week and went into respite care on the weekend.
Since the age of 18, she had lived in the Glanville Nursing Home in Echuca, a town in northern Victoria. She remained living there until the date of her death.
In 2003, the deceased received a compensation payment of approximately $3,800,000.
At the time of the deceased's death, all her assets (other than $451.14, money held on trust by the Glanville Nursing Home) were managed by the NSWT&G. After notification of the death of the deceased, the NSWT&G redeemed the various assets held on trust and paid them into its trust account.
The Plaintiff gave evidence that if Mr Farkas had attempted to contact the deceased without her knowledge, she would have expected the deceased to have told her. She also stated that she would have expected the school, or Glanville Nursing Home, where the deceased had been resident, to have contacted her if there had been any approach made by Mr Farkas to contact the deceased: Affidavit, Emily Marlene Higgins, 20 July 2022 at par 29. There had been no such contact by either.
The Plaintiff satisfied the Court that the deceased died intestate. A will was not located in her personal effects and other searches conducted for a will, including making inquiries of local solicitors, the NSWT&G and State Trustees Limited did not result in the production of a will or other document recording the deceased's testamentary intentions. (It is unlikely that the deceased had a safe custody packet. The Plaintiff gave evidence that the deceased did not have any bank accounts in her own name.)
There was no evidence that any application had been made to the Court by any person, for the making of a will that dealt with the whole, or part, of the property of the deceased under Part 2.2, Division 2 of the Act (a Court authorised will for a person who does not have testamentary capacity).
As already stated, the deceased was never married and had not been in a de facto relationship which had been in existence for a continuous period of 2 years, or at all, or which had resulted in the birth of a child: Affidavit, Janine Carroll, 20 July 2022 at par 11.
It was clear from the evidence that the deceased had no issue: Affidavit, Sheree Jane Higgins, 27 November 2020 at par 15.
The Plaintiff accepted that she could not make a claim for a family provision order. Whilst she may have been a member of the household of which the deceased was a member, she was not a person who was wholly or partly dependent on the deceased, and at that particular time, or at any other time: s 57(1)(e) of the Act. Nor is she a person with whom the deceased was living in a close personal relationship at the time of the deceased's death: s 57(1)(f) of the Act.

Attempts to locate and serve Mr Farkas

In response to the Plaintiff's application for a grant of letters of administration, which had been filed as an uncontested application, the Principal Registrar of the Court, on 4 December 2020, responded with requisitions including: "As both parents have not applied, there is a missing beneficiary. The applicant is required to attempt to locate the persons entitled and serve notice on them or obtain their consents. File an affidavit outlining all searches and attempts to serve those entitled… Once searches have been exhausted and the affidavit of attempted service filed, if the beneficiary is still missing / cannot be located, the Court's usual practice when a beneficiary does not have the ability to consent to the appointment or to the dispensation of the bond, is to order that an administration bond and two sureties be filed, to the value of the beneficiary's share."
From 4 December 2020, searches were conducted to identify, and locate, Mr Farkas, and to alert him to the proceedings. These attempts are described in seven affidavits of the Plaintiff's solicitor, Mr Harley Moore, affirmed, respectively, on 19 July 2022, on 26 August 2022, on 23 September 2022, on 9 December 2022, on 12 December 2022, on 24 January 2023, and on 25 January 2023.
There is also an affidavit of Ms Katherine Chernov, Mr Moore's assistant, affirmed 19 August 2022, and an affidavit of Mr Peter Hebbard, solicitor, affirmed on 6 October 2022.
In the affidavit affirmed on 19 July 2022, Mr Moore described the initial attempts made to locate Mr Farkas (including alternate spellings of that name), as follows: 1. He conducted searches of publicly available databases such as ASIC and the White Pages to obtain the address of anyone with the name "Steven Farkas" or with a similar name. 2. He then sent letters to 10 addresses, which had been identified from the searches that had been made. 3. On 3 August 2021, his staff received a telephone call from someone who advised that he was Steven Farkas who resides at Rockdale, NSW. (It was not established that he was and no further mention of him is made in the evidence.) 4. On 13 September 2021, a professional investigator, Mr Thomas Cullen, of Lyonswood Investigations and Forensics, which I understand to be a professional and government-licensed private investigation company, was engaged. A report from him was received on 27 January 2022. 5. Mr Cullen conducted further searches of the electoral roll, a tenancy records database, further national public record databases, a real property ownership database, ASIC's bankruptcy register, a criminal/civil court attendance records database, the Australian court judgment databases, a death index, and various other databases (Reverse Australia, SyncMe and contact applications, the Locate Family database, the ZoomInfo directory). He also conducted a general internet search. The report identified 5 addresses of particular interest, as well as a number of further addresses and telephone numbers. 1. Mr Moore then sent 30 letters, one to each address which had been identified in Mr Cullen's report, including to the address of Eva and Elizabeth Farkas, who were identified as possible siblings of Mr Farkas. 2. Mr Moore received numerous responses confirming that the person who responded was not the person sought.
On 11 August 2022, Ms Chernov made a telephone call to each telephone number identified in Mr Cullen's report. Several of the telephone numbers were not in service, whilst others were answered but did not provide any additional information.
In the affidavit affirmed on 26 August 2022 of Mr Moore, he described the further attempts taken to locate Mr Farkas (including alternate spellings of that name), as follows: 1. On 9 August 2022, Mr Moore received an email from Doreen Hodges, who advised him that there was a person with the name "Stephen Farkas" on the Ryerson Index, who died on 10 July 2010, aged 70 years. (I understand the Ryerson Index to be a research tool which enables the search of an index to death notices appearing in Australian newspapers. It also includes many funeral notices, and some probate notices and obituaries.) 2. Mr Moore was informed that, on 9 August 2022, Deborah Faulkner, an employee of his firm, Mills Hebbard Moore, received a telephone call from a person who identified himself as Ross Hurst, who stated that a "Steve Farkas" passed away 2 or 3 years ago. (Subsequent information suggests that this information may be inaccurate.) 3. On that date, an advertisement was published in the Wagga Wagga Daily Advertiser seeking to find Stephen Farkas (including alternate spellings). Mr Moore, subsequently, received a telephone call from Eva Farkas, who said she was Mr Farkas' sister. She had been alerted to the advertisement. She confirmed that she had met the Plaintiff, on one occasion, and that Mr Farkas was named Stephen Anthany (spelling unclear) Farkas, son of Stephen Laszlo Farkas and Marion Collette Farkas. She said Mr Farkas was then about 56 or 57 years old. 4. Ms Farkas, said that she, also, had not had any contact with her brother since 1999 and that she did not have any means of contacting him. However, she provided some information about her family, details of the Facebook accounts of their sister, Elizabeth Grace, and of a friend of Mr Farkas, Lisa Brookes. 5. On 10 August 2022, Mr Moore sent an email to Ron Finemore Transport at Wodonga Victoria. On the same date, Mr Moore received an email from Ron Finemore Transport Services Pty Ltd, informing him that there was no record of a "Stephen Anthany Farkas" in the company's current payroll system. 6. On the same date, Mr Moore received a telephone call from a person who identified himself as Don Collie, who stated that he had acted as an accountant for "Stephen Laszlo Farkas" and his wife. He informed Mr Moore that "Stephen Laszlo Farkas" was an elderly person who died about 10 years ago. 7. On 12 August 2022, an advertisement was published in the Echuca Riverine Herald, a newspaper based in Echuca in Victoria's Goulburn Valley, servicing the Echuca-Moama area, seeking to locate Stephen Farkas (including alternate spellings). No response has been received in relation to this advertisement. 8. Mr Moore sent two messages, one on 10 August 2022 and another on 25 August 2022 to Elizabeth Grace's Facebook account but he has not received any response. 9. On about 11 August 2022, Mr Moore also sent a message to Lisa Brookes' Facebook account. She responded and informed Mr Moore that she had not seen Mr Farkas for 16 or 17 years, but that her mother had told her that she had seen him in Wagga Wagga, and he had told her that he was living in Sydney. 10. Following further inquiries made on 25 August 2022, Ms Brookes identified a Facebook account as belonging to Mr Farkas (under the name Steve Evans, "Evans" being his mother's maiden name). The photograph from the "Steve Evans" Facebook account was shown to the Plaintiff who confirmed that the photograph was of Mr Farkas. 11. On the same date, Mr Moore received a telephone call from Ms Brookes, who identified a friend of Mr Farkas, Glenn Little. She claimed to know where Mr Farkas was and to have his contact details. However, further attempts to obtain Mr Little's contact details have been unsuccessful. No telephone call or contact has been received from Mr Little. 12. Mr Moore sent a further 13 letters, one to each address which had been identified in Mr Cullen's report. No responses to any of the letters have been received.
In the affidavit affirmed on 23 September 2022, Mr Moore described the further steps that had been taken to locate Mr Farkas (including alternate spellings of that name), as follows: 1. On 2 September 2022, Mr Moore sent a message to the "Steve Evans" Facebook account describing the present proceedings and invited Mr Farkas to contact the firm and the Probate Registrar if he wished to be heard in relation to the application. No response has been received. 2. On or about 16 September 2022, advertisements were published respectively in the Wagga Wagga Daily Advertiser and the Echuca Riverine Herald. No response to either advertisement has been received. 3. Mr Moore gave evidence that he received no telephone call or contact from Mr Little.
On 6 October 2022, Mr Peter Hebbard sent a message to the "Steve Evans" Facebook account describing the orders sought by the Plaintiff. No response was received.
The "Steve Evans" Facebook account included other information which led to further avenues of investigation, none of which have provided further information about the current whereabouts of Mr Farkas.
On 8 November 2022, Mr Moore requested Mr Cullen, the private investigator) to provide a further report.
A report from Mr Sam Norman, an Investigations Analyst at Lyonswood Investigations and Forensics, was received on 12 December 2022. Mr Norman conducted searches of the electoral roll, the NSW tenancy records database, national public record databases, ASIC's bankruptcy register, property databases, a criminal/civil court attendance records database, Australian court judgment databases, the Ryerson Index, and the White Pages. He also conducted a general internet search. The report identified 10 addresses of particular interest.
Against the possibility that Mr Farkas may have changed his name to Steve Evans, additional searches of public databases were conducted for the name "Steve Evans". Due to the prevalence of the name "Steve Evans" and the information available, the searches were focussed primarily on persons in NSW and QLD and were narrowed down, where possible, to the known year of his birth (1964). This resulted in 15 addresses of interest, associated with a Steve (or Steven or Stephen) Evans: Affidavit, Harley Russell Moore, 24 January 2023 at pars 3-4. Of these, Mr Moore endeavoured to contact 12 of the persons as he believed that the other three, were not about Mr Farkas's age. No relevant responses have been received.
In his report, Mr Norman concluded: "Based on all information provided and uncovered, Lyonswood Investigations does not deem there to be any merit in further investigation to locate the subject at current. Accuracy is dependent on the data Lyonswood Investigations has been provided. The core anchor points for this investigation and analysis have been the spelling of the names provided, and an approximate date of birth of the subject. As of 12 December 2022, Lyonswood Investigations has exhausted its databases in endeavouring to locate the subject."
On 23 January 2023, Mr Moore conducted an internet search of EJ Britten Surveyor and Associates Pty Ltd, the company which "Steve Evans" had worked at as an assistant surveyor from 11 March 2003 to 26 April 2010. He also carried out an ABN lookup search but found that the ABN of EJ Britten Surveyor and Associates Pty Ltd had been cancelled, along with its business name. He conducted ASIC searches which showed that the company was deregistered.
Attached to the written submissions dated 25 January 2023, provided by counsel for the Plaintiff, is a summary of all the attempts that have been made to contact, by post, to the different addresses which have been identified as the possible address of Mr Farkas (including under the name Steven Evans).
I am satisfied that the legal representatives of the Plaintiff, in the circumstances, have done all that could be done, to locate Mr Farkas. Those solicitors have carried out many necessary, and proper, investigations. No reasonable further enquiries could be made which would improve the state of the evidence: West v Weston (1998) 44 NSWLR 657; [1998] NSWSC 419. It appears that Mr Farkas does not wish to be located, or to involve himself in these proceedings.

Is a contradictor required?

In ordinary litigation, the Plaintiff must decide who to name as a defendant. In this case, no person has been named in the Plaintiff's amended Summons dated 17 May 2022.
In considering this aspect of the matter, I remember the following passage in Tighe at [18] (Kunc J): "Fifth, have reasonable steps been taken to identify and notify all persons interested in the application? This will need to be proven by affidavits identifying how it is said the persons are interested. This will generally be because they may be entitled in some way to make a claim or that their interests will be adversely affected by the orders sought. In my view, except where it is for some reason impracticable or will cause undue expense or delay, interested persons should be personally served with notice of the application and affidavits of service filed. Furthermore, because the application of Customary Law is a matter of general interest to the relevant Indigenous community or group, applications under Part 4.4 should be advertised in newspapers circulating in the country of that community or group by analogy with the procedure that was used for publication of notice of intended applications for probate or administration before the introduction of the online registry website."
Because of the nature of the application, I have also considered his Honour's description of "interested persons" at [19]: "Depending on the facts, interested persons will include (and these categories may overlap): (1) All persons entitled to take on intestacy under the Act (given that a distribution order will exclude those provisions - see s 135 of the Act). The personal representative of the deceased (if any). Other potential claimants under the Act (for example, all persons eligible to make a family provision claim (see s 57 of the Act)) or the relevant Customary Law. Any person against whom an order under s 134(2) of the Act may be sought. Where there is evidence of the deceased's testamentary intentions, persons intended to be benefitted by the deceased (sic). …"
I have considered Mr Farkas, whose interests will be adversely affected, and whether there are means to enable him to be represented. As already stated, many attempts have been made, on behalf of the Plaintiff, to bring the proceedings to his attention. In addition, there is no evidence that he has ever played any part in the relatively short life of the deceased. As stated, he is the only other person entitled under the operation of the rules of intestacy.
Having considered the evidence, I am also satisfied that there are no other potential claimants under the Act who are eligible to make a family provision claim under Chapter 3 of the Act, or under the relevant Customary Law. Indeed, there do not appear to be any other "claimant[s] on the bounty of [the deceased] who could establish, within the setting of an Indigenous community, a strong moral claim based on an active personal relationship of mutual care over a substantial period": Re Estate Jerrard, deceased at [5] (Lindsay J).
There is no evidence of any other person who could be regarded as an interested person.
As in The Estate of Alan Bruce Beeby [2020] NSWSC 1512 at [55]-[62], I am satisfied that there is no need for a contradictor to be named, or further attempts to serve persons, mainly because the evidence, to which I shall refer, appears to be all one way. Indeed, there are no countervailing factors to dealing with the matter based on the evidence that has been filed.

The Submissions

I summarise counsel's other submissions below: 1. The deceased was an Indigenous intestate, as she is of Aboriginal descent and identified as an Aboriginal person. Two elders of the Aboriginal community in Echuca, namely Muriel Day and Vicki Mitchell, deposed that the deceased can be regarded as a member of the Aboriginal community in Echuca. In addition, the Plaintiff gave evidence of the deceased's attendance at the Njernda Aboriginal Co-Operative with other members of the Aboriginal community in Echuca. 2. The deceased belonged to the Aboriginal community in Echuca. 3. The Plaintiff has standing to bring the application under Part 4.4 of the Act because she has a bona fide and arguable claim that she is entitled to the deceased's estate under applicable customary law. 4. The Plaintiff has taken reasonable steps to notify all relevant persons who might reasonably be supposed to have an interest in the determination of the proceedings, namely that of making reasonable efforts to locate Mr Farkas by causing advertisements to be placed in appropriate regional newspapers which regularly circulate in and around Echuca. 5. The Plaintiff is seeking an order pursuant to s 134(1) of the Act that the estate of the deceased be distributed to her. 6. There is no property in which an order under s 134(2) of the Act may be sought in the present case because nothing has been distributed prior to the date of the application. 7. The scheme for distribution accompanying the Plaintiff's application is in accordance with the laws, customs, traditions, and practices of the Aboriginal community in Echuca pursuant to s 133(2) of the Act. There was evidence from two elders of the Aboriginal community in Echuca, Muriel Day, and Vicki Mitchell, concerning the traditional laws and customs of their community. Muriel Day deposed that: "Based upon my knowledge of Aboriginal customs and traditions, [the deceased's] assets and possessions would be given to [the Plaintiff], as [the Plaintiff] is the closest member of [the deceased's] family and had provided care and support to her and had ensured that she was always well looked after and cared for. The customs and traditions would not have led to any distribution of any of [the deceased's] assets or property to her father as he had no contact whatsoever with [the Plaintiff] or [the deceased] and nor was he Aboriginal. He was not a member of the Aboriginal community where [the Plaintiff] and [the deceased] lived (sic)." Vicki Mitchell deposed that: "In my experience when a member of the local Aboriginal community has died his or her immediate family would then determine how any belongings or assets of the deceased are divided. … In my experience the usual custom or tradition would dictate that the closest members of the family would receive all the assets. I know that [the Plaintiff] was a sole parent. After [the deceased's] accident, [the Plaintiff] cared constantly for [the deceased] and once she moved into nursing accommodation, she regularly visited her and provided additional care and comfort to [the deceased] (sic). In my experience and based upon my knowledge of the custom and traditions of the local Aboriginal community, [the Plaintiff] would pursuant to those customs and traditions be entitled to all [the deceased's] assets and belongings (sic)." 1. The terms of the Plaintiff's proposed order are just and equitable in all the circumstances, considering that the Plaintiff made a significant contribution to the deceased's wellbeing, particularly after the deceased incurred serious injuries in 1993. She then raised the deceased in the family home and visited the deceased three or four times a week after she moved into the Glanville Nursing Home. 2. In contrast, Mr Farkas, her biological father, had no contact with the deceased nor any relationship with her during her lifetime. 3. There is no reason why the Court would exercise its residual discretion to not make a distribution order under s 134(1) of the Act.
In the alternative to the making of an order under Part 4.4 of the Act, counsel for the Plaintiff submitted that the Court should grant a Benjamin order: Re Benjamin; Application of Harnett and Cutts [2016] NSWSC 427; Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532 at [23].
However, counsel for the Plaintiff emphasised that the Plaintiff's preferred remedy is the granting of an order under s 134 of the Act. I have dealt with the matter on this basis.

The Law

In the case of a person who dies and either does not leave a will or leaves a will but does not dispose effectively by will of all or part of her, or his, property, the intestacy provisions of the Act operate automatically in relation to the distribution of her, or his, estate.
Chapter 4 was inserted into the Act by the Succession Amendment (Intestacy) Act 2009 (NSW), which was assented to on 9 June 2009, and which came into operation on 1 March 2010. It applies to persons dying intestate on, or after, that date: see Sch 1, Pt 4, cl 13 of the Act.
The long title to that Act stated that it was "to amend the Succession Act 2006 and the Probate and Administration Act 1898, to revise and re-state the rules for distribution on intestacy; and for other purposes".
Section 101 of the Act defines "intestate estate", relevantly, to mean "all the property left by the intestate".
Section 101 also defines "Indigenous person" as being: "a person who: (a) is of Aboriginal or Torres Strait Islander descent, and (b) identifies as an Aboriginal person or Torres Strait Islander, and (c) is accepted as an Aboriginal person by an Aboriginal community or as a Torres Strait Islander by a Torres Strait Islander community."
The definition appears to be what might be regarded as a standard one to identify an "Indigenous person", being a tri-partite, cumulative, test, incorporating genetic, or biological, descent, self-identification, and community acceptance or recognition: Mabo v Queensland (No 2) (1992) 175 CLR 1 at 70; [1992] HCA 23 at [83] (Brennan J).
The weight to be given to each, or any of these factors, is a matter for the Court and may vary from case to case. For example, if self-identification, and community acceptance, or recognition, are present, those matters may logically be probative of genetic, or biological, descent: Gibbs v Capewell (1995) 54 FCR 503 at 510; [1995] FCA 25 (Drummond J); Shaw v Wolf [1998] FCA 389; (1998) 83 FCR 113 at 120 (Merkel J); McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602; [2020] FCAFC 223 at [108] (Besanko J).
I shall next deal with the relevant sections of Part 4.4 of the Act.
Section 133 of the Act is in the following terms: 133 Application for distribution order (1) The personal representative of an Indigenous intestate, or a person claiming to be entitled to share in an intestate estate under the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous intestate belonged, may apply to the Court for an order for distribution of the intestate estate under this Part. (2) An application under this section must be accompanied by a scheme for distribution of the estate in accordance with the laws, customs, traditions and practices of the community or group to which the intestate belonged. (3) An application under this section must be made within 12 months of the grant of administration or a longer period allowed by the Court but no application may be made after the intestate estate has been fully distributed. (4) After a personal representative makes, or receives notice of, an application under this section, the personal representative must not distribute (or continue with the distribution of) property comprised in the estate until: (a) the application has been determined, or (b) the Court authorises the distribution.
By operation of section 133(1), an application for a distribution order can be made by the personal representative of an Indigenous intestate (that is, an administrator or, in the case of a partial intestacy, an executor of the deceased's estate), or by a person "claiming to be entitled" to share in the intestate estate "under the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged".
This section is far more difficult than it might appear to be. That is so particularly regarding the reference to "laws, customs, traditions and practices of the community or group", which is not defined, and which may not be regarded as standard, even within the community or group to which the intestate belonged.
There are likely to be different formulations of such "laws, customs, traditions and practices". This is because Indigenous persons live a wide diversity of lifestyles, with the result that there are many different types of Indigenous communities in Australia, including metropolitan, rural, urban, traditional, and historical, communities, and groups which have gathered from different regions. Also, they are, more often than not, unwritten.
Furthermore, "[t]he Aboriginal kinship system may include persons who are not blood relations at all (as distinct from classificatory relations), and yet there may be important obligations and rights existing between the deceased and such a person": Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986) Vol 1 at [337], which are values, rather than rules, based. The primacy of relationships provides an example.
Relevantly, in Re Estate Jerrard, Lindsay J noted at [20]-[21]: "The necessity for Part 4.4 arises from the fact that, in an Indigenous community, the concept of "family" relationships may differ radically from the general concept of "family" relationships upon which Parts 4.2 and 4.3 are predicated: GE Dal Pont and KF Mackie, Law of Succession (LexisNexis Butterworths, Australia, 2nd ed, 2017), para [9.76], citing (as does Re Estate Wilson at [106]-[107]) the writings of Professor Prue Vines. The difference is commonly said to be that, whereas family relationships in a non-Indigenous community are "linear" (proceeding from parents to children in each generation), Indigenous family relationships may be "collateral" in the sense that a child might be nurtured by a sibling of his or her parents, or by others within their community, rather than by or in addition to his or her parents. By way of illustration, using non-Indigenous descriptors, an Aboriginal child might commonly be raised by an uncle, aunty or grandparent, rather than by a parent or by a parent only. In what is said to be a concrete example of his adherence to this style of society, the deceased named a maternal uncle as his "Emergency Contact/Next of Kin" on a staff record when, in February 2015, he commenced a period of employment with Inverell Shire Council."
In Re Estate Wilson, Lindsay J wrote that the phrase "laws, customs, traditions and practices of the community or group" was "practically equivalent" to "customary law". His Honour wrote at [15]-[16], [134] and [139]-[143]: "The expression "laws, customs, traditions and practices" is an unhappy one to use as a focal point in legislation such as Chapter 4 of the Succession Act because it invites uncertainty mired in obscure formality. Its origins are unclear; but they may lie in the pleadings found in Mabo v Queensland (1988) 166 CLR 186 at 195, 208 and 220, a precursor to the seminal native title judgment in Mabo v Queensland [No 2] (1992) 175 CLR 1. Chapter 4 is not limited in its focus to land or systems of land title governing a particular community. Its focus is on succession to individual property rights, across the full range of property types, in fluid communities empowered by, but not tied to, a traditional heritage. Compelled by a need to decide a particular, concrete case, this judgment confronts the expression "laws, customs, traditions and practices" and locates meaning in ideas that inform the law of succession generally: the concept of an individual living, and dying, in community; a perceived need for recognition of just or moral claims on a deceased estate (including, but not limited to, the claims of dependants); and an associated, perceived need to provide for those for whom an intestate person might reasonably be expected to have made provision if required to make a will. These ideas are adaptable to Indigenous estates no less than to non-Indigenous ones. … Given the need in each case to focus on all the circumstances of the case, nothing of significance turns upon variations in language between section 60(2)(o) and sections 133-134. A direction that Aboriginal or Torres Strait Islander "customary law" may be relevant to the proper determination of a family provision claim has practical equivalence to the direction to the Court (in section 134(3)(b)) to have regard, upon an application for a distribution order affecting an Indigenous intestate estate, to "the laws, customs, traditions and practices of the Indigenous community or group to which [the] intestate belonged. … The Customary Law Criterion. The expression "the laws, customs, traditions and practices of the Indigenous community or group to which [the] Indigenous intestate belonged" appears deliberately not to have been defined. Its breadth embraces almost all, if not all, jurisprudential perspectives of "law", using cumulatively words sometimes deployed in antithesis to one another. The juxtaposition of these potentially conflicting perspectives of "law" suggests that what is described is not a set of positivist rules (such as found in Parts 4.2 and 4.3 of the Succession Act) but a general understanding within a community of rights and obligations of an individual living, and dying, in the community. The expression "laws, customs, traditions and practices" must be read, in context, as "laws, customs, traditions and practices" relating to distribution of an intestate estate. So, too, the reference to "customary law" in section 60(2)(o) must be read, in context, as a reference to "customary law" bearing upon whether a family provision order can, and should, be made. Neither expression is intended necessarily to refer to a complete system of law with a field of operation beyond the particular subject-matter at hand. Both expressions, jointly and severally, invoke an understanding of community, and represent an endeavour to encapsulate in legal phraseology social, economic and religious bonds that define, reflect and bind a community of Indigenous people. Both expressions are essentially manifestations of community. The word "group" found in sections 133 and 134 but absent from the definition of "Indigenous person" in section 101, may refer to a collection of people who are a subset of, or different from, the community, or communities, consulted for the purpose of testing whether a deceased person was an "Indigenous person" within the meaning of the statutory definition. Use of the expression "community or group" in sections 133 and 134 reinforces an impression that "the laws, customs, traditions and practices" to which the sections refer are "laws, customs, traditions and practices" in the nature of a general, communal understanding rather than a set of positivist rules in a formal system of law."
What his Honour has written seems to accord with Bryan A Garner, Black's Law Dictionary (11th ed, 2014, Thomson Reuters) definition of "customary law" as: "Law consisting of customs that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws."
The evidence required to establish the "laws, customs, traditions and practices" has also been considered in Tighe. In that case, Kunc J wrote at [30]-[36]: "In Wilson, Lindsay J said: "The empirical character of Part 4.4, which directs attention to all the circumstances of a particular case, does not exclude the possibility that expert evidence might be placed before the Court to assist in identification of "the laws, customs, traditions and practices of the Indigenous community or group to which [the] Indigenous intestate belonged". In an appropriate case, such evidence might include evidence from one or more senior members of the intestate's community or group, or evidence prepared or endorsed by a Local Aboriginal Land Council. However, the jurisdiction of the Court can be invoked, and a distribution order can be made by the Court, without any such evidence. To require such evidence in every case, or even in most cases, might be to stultify the Court's jurisdiction, and to deny to Indigenous families the access to justice intended by enactment of Part 4.4. In the present case, if not in most or all cases in which the Court's jurisdiction under Part 4.4 is invoked, identification of an intestate as an "Indigenous person" and exposition of his or her family relationships within his or her "Indigenous community or group" is sufficient to address the concept of "the laws, customs, traditions and practices of the Indigenous community or group to which [the] Indigenous intestate belonged" upon which a claimant's standing depends." I do not disagree. However, I make four, additional observations. First, in my respectful opinion, as a matter of general practice applications under Part 4.4 should, whenever possible, "include evidence from one or more senior members of the intestate's community or group, or evidence prepared or endorsed by a Local Aboriginal Land Council" as to the customary law governing succession or any of the other matters referred to in paragraph [10] above. This is not to diminish the possibility of proof in the way described in paragraph [156] of Wilson. However, clear evidence of the kind to which I have referred will be of particular assistance in the determination of uncontested applications. So it was that in Application by the Public Trustee for the Northern Territory [2000] NTSC 52 Martin CJ was able to observe: "[4] The affidavit evidence of each of three deponents, senior members of clan groups making out the Jawoyn people, asserts that she or he is qualified and authorised by Jawoyn tradition to say who is entitled to take an interest in the estate under the customs and traditions of the Jawoyn." Second, where such evidence is given by a member of the deceased's Indigenous community or group, that evidence will have the benefit of these provisions of the Evidence Act 1995 (NSW) (the "EA"): "72 Exception: Aboriginal and Torres Strait Islander traditional laws and customs The hearsay rule does not apply to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group. … 78A Exception: Aboriginal and Torres Strait Islander traditional laws and customs The opinion rule does not apply to evidence of an opinion expressed by a member of an Aboriginal or Torres Strait Islander group about the existence or non-existence, or the content, of the traditional laws and customs of the group." The dictionary to the EA provides that "traditional laws and customs of an Aboriginal or Torres Strait Islander group (including a kinship group) includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group". Third, insofar as evidence of the relevant Customary Law is sought to be given by a person who is not a member of the deceased's Indigenous community or group, then consideration will need to be given whether such evidence is opinion evidence that would be admissible as an exception to the opinion rule under s 79 of the EA. Fourth, the exclusionary discretions under ss 135 and 136 of the EA and the power to waive the rules of evidence under s 190 of the EA may need to be considered in any particular case."
Considering the two judgments, it may be that what is being stressed, albeit somewhat differently, is how "the laws, customs traditions and practices of the Indigenous community or group to which the deceased belonged" are proved in the particular case, and to clarify that the evidence could be given by the person, or persons, within that Indigenous community or group, who has, or have, the necessary understanding, and experience, to enable him, or her, to inform the Court about those matters. In this way, differences in the principles of customary law, which are unable to be harmonised into a single framework, may be catered for by the consideration of the localised indigenous group to which the deceased belonged.
Section 134 deals with distribution orders. It provides: 134 Distribution orders (1) The Court may, on an application under this Part, order that the intestate estate, or part of the intestate estate, be distributed in accordance with the terms of the order. (2) An order under this Part may require a person to whom property was distributed before the date of the application to return the property to the personal representative for distribution in accordance with the terms of the order (but no distribution that has been, or is to be, used for the maintenance, education or advancement in life of a person who was totally or partially dependent on the intestate immediately before the intestate's death can be disturbed). Note: For example, a distribution may have been made under section 92A of the Probate and Administration Act 1898 or section 94 of this Act. (3) In formulating an order under this Part, the Court must have regard to: (a) the scheme for distribution submitted by the applicant, and (b) the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged. (4) The Court may not, however, make an order under this Part unless satisfied that the terms of the order are, in all the circumstances, just and equitable.
(There is no property in respect of which an order under s 134(2) is being sought as there has been no distribution of any part of the estate. However, it is important to note the reference therein to distributions made and used for the maintenance, education, or advancement in life of a person who was totally or partially dependent on the intestate immediately before the intestate's death.)
Under this section, the Court must, first, have regard to: 1. the scheme for distribution submitted by the applicant; 2. the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged. Other than by reference to those two matters, the section does not identify any matters to which the court must have regard.
In Tighe at [25], Kunc J noted the "scheme for distribution" under s 133(2) of the Act should be set out with particularity, attached to the Summons, and identified as such. It should specify the Indigenous community or group whose laws, customs, traditions, and practices are being relied upon.
The critical feature of a "scheme for distribution" is that it embodies a proposal for distribution of the whole of the intestate estate, a proposal for a share of part of that estate. The requirement for a "scheme for distribution" is one of substance, not form. Functionally, a "scheme for distribution" must be a proposal for distribution of the whole of an estate and facilitate administration of the estate: Re Estate Wilson at [160]-[163]; Re Estate Jerrard at [50].
Thus, for the purposes of Part 4.4 of the Act, a person's proposed "scheme for distribution" which provides for the whole of the estate of the deceased to be distributed in a particular way should be set out in an originating process: Re Estate Jerrard at [50].
Then, having had regard to those matters, the Court formulates, if it is able to, the terms of the distribution order, which it considers ought to be made, which, in all the circumstances, is just and equitable. In this regard, the Court's duty is to give such judgment, or make such orders as the nature of the case may require: Civil Procedure Act 2005 (NSW), s 90; Uniform Civil Procedure Rules 2005 (NSW), rule 36.1. Its powers include a power to make orders on terms: Civil Procedure Act, s 86.
In Re Estate Jerrard, Lindsay J noted at [22]: "The object of Part 4.4 is (by means of vesting a discretionary power in the Court) to do what is just and equitable in the particular circumstances of an individual case to accommodate such factors in administration of an Indigenous intestate estate: Re Estate Wilson at [126]."
If a distribution order which is just and equitable is unable to be formulated, the Court may not make an order.
In Bailey v Polumbo [2020] NSWSC 1209, I wrote, at [125]-[133] in connection with the phrase: "… That term, like "equity, good conscience and the substantial merits of the case" is not one of legal art: Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 30 (Gleeson CJ and Handley JA). The court is given broad, statutory jurisdiction, equitable in character, to enforce not only what is legal but also what is fair. The exercise of that discretion is fact specific. Even so, making a distribution order must not be exercised according to an unguided judicial discretion or upon some idiosyncratic view of the claims being made. As Stephen, Mason and Jacobs JJ wrote in Talga Ltd v MBC International Limited (1976) 133 CLR 622 at 634; [1976] HCA 22: "The court will have before it an existing transaction replete with all its surrounding facts and circumstances and in their light will determine what is just and equitable. In doing so it will certainly be exercising a wide discretion but this is a commonplace of the curial process; the court will be bound to act judicially, exercising its discretion by reference only to such considerations affecting the transaction as, on an examination of the legislation, may be seen to be material to the decision which it is called on to make. Irrelevant matters … which have no rational connexion with the policy of the regulations but would be expressive only of the personal predilections of the Court, cannot be allowed by it to play any part in its decision." In Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 at [45]-[49], Barrett J helpfully surveyed the authorities considering the meaning of "just and equitable". His Honour wrote at [45]: "A court directed by statute to proceed according to what is 'just and equitable' is given a wide discretion. There is, as Owen J observed in Thomas v MacKay Investments Pty Ltd (1996) 22 ACSR 294 at p.302, 'no necessary limit on the generality of the words'. They are 'to be applied in their ordinary meaning as calling for the exercise of judgment in the conventional way.'" His Honour referred to In re Blériot Manufacturing Aircraft Company (Limited) (1916) 32 TLR 253 at 255 (Neville J) in which it had been said that "[t]he words 'just and equitable' are words of the widest significance, and do not limit the jurisdiction of the Court to any case. It is a question of fact, and each case must depend on its own circumstances". In Kennon v Spry (2008) 238 CLR 366 at 399 [95]; [2008] HCA 56 at [95], Gummow and Hayne JJ said of the origin of the phrase: "The phrase 'just and equitable' appears to have its origins in the principles of equity which were developed with respect to the dissolution of partnerships, where they remained general words which were not to be reduced to the sum of particular instances." (citations omitted) In Stanford v Stanford (2012) 247 CLR 108 at 120 [36]; [2012] HCA 52 at [36], the plurality (French CJ, Hayne, Kiefel and Bell JJ) of the High Court, in dealing with s 79(2) of the Family Law Act which provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order", noted: "The expression 'just and equitable' is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds …" (citations omitted) (Although in Stanford v Stanford, the High Court was dealing with an application between spouses for property settlement pursuant to Pt VIII of the Family Law Act, the principles quoted apply equally to applications for a distribution order.) In Re Estate Wilson, Deceased, Lindsay J wrote at [136]: "The expression 'just and equitable' is well-known to lawyers, appearing as it does in a variety of legislative contexts, and depending as it does on the context in which it is used and the particular facts of each case in which it is stated as a criterion for action. Coupled with a direction that 'all the circumstances' of a case are to be taken into account, it is a classic means of invoking jurisdiction essentially equitable in character.""
It is also relevant to refer to what was said in Bevan v Bevan (2013) 279 FLR 1; [2013] FamCAFC 116 at [84]: "Just as the expression "just and equitable" does not admit of exhaustive definition, it is not possible to catalogue the "range of potentially competing considerations" that may be taken into account in determining whether it is just and equitable to make an order…"
It seems to me that whether the distribution order is "just and equitable" may be determined by considering whether the applicant's rights are, or should be, different from those that exist under the operation of the rules of intestacy. Whilst I agree with Lindsay J in Re Estate Wilson, at [146], that this does not mean that the starting point for analysis is a presumption that the rules of intestacy apply, one cannot forget that the application for a distribution order is by "a person claiming to be entitled to share in an intestate estate". Therefore, the share to which the applicant is entitled under the operation of the rules of intestacy, must have relevance to the determination of the question whether a distribution order should be made, and whether the distribution order that is sought is just and equitable.
In this way, s 134 of the Act requires a consideration of the question whether the rights that exist under the operation of the rules of intestacy should be altered by making a different distribution order based upon the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged.
Section 134(1) of the Act provides that the Court retains a residual discretion to decline to make a distribution order. If it declines to make an order, the rights that exist under the operation of the rules of intestacy are not altered.
Next, s 135 of the Act provides: 135 Effect of distribution order under this Part A distribution order under this Part operates (subject to its terms) to the exclusion of all other provisions of this Act governing the distribution of the intestate estate.

Determination

I turn now to answer the questions which arise from Part 4.4.
The first question is: was the deceased an "Indigenous person" as defined by s 101 of the Act?
The Plaintiff has given evidence about this matter. There is evidence of the deceased's descent, her identifying as an Aboriginal person, and the evidence of Muriel Day, and Vicki Mitchell, elders of the Aboriginal community in Echuca, who have stated that each of the deceased and the Plaintiff was regarded as a member of the Aboriginal community in Echuca. In addition, the Plaintiff has given evidence of the deceased's attendance at the Njernda Aboriginal Co-Operative for social contact with other members of the Aboriginal community in Echuca.
It seems clear that the deceased was an Indigenous person.
The time limitation imposed by s 133(3) of the Act is satisfied in the present case given that a grant of administration has been made, albeit has not been issued by the Court.
The next question is whether reasonable notice of the proceedings has been given to all persons who might reasonably be supposed to have an interest in the determination of the proceedings. I have set out the voluminous evidence going to this topic.
It seems clear that reasonable notice has been attempted to be given to the only other person whose interests are, or might be, affected by the making of a distribution order, namely Mr Farkas. There are no additional reasonable steps that the Plaintiff could take.
Then, because of the injuries that the deceased suffered, there is no evidence of any acts or omissions, statements, or conduct, on the part of the deceased bearing upon her testamentary intentions.
Section 134(2) of the Act does not apply in the present case as no property had been distributed before the date of the Plaintiff's application.
Evidence of the Indigenous community or group to which the deceased belonged is given by each of the elders, Muriel Day, and Vicki Mitchell, who describes the relevant Aboriginal community as "the Aboriginal community in Echuca". Both assert that according to their understanding of the culture and traditions of the Aboriginal community in Echuca, most members in that community do not make a formal will: Affidavit, Vicki Marie Mitchell, 15 March 2022 at par 9; Affidavit, Muriel Day, 23 November 2021 at par 5.
Vicki Mitchell has also written that when a member of the Aboriginal community in Echuca dies, the ordinary practice would be for her, or his, immediate family to determine how the member's assets or belongings would be distributed: Affidavit, Vicki Marie Mitchell, 15 March 2022 at par 10.
To put it simply, the deceased's assets and belongings would be distributed amongst the family with whom the member lived, or with whom she, or he, had close contact: Affidavit, Muriel Day, 23 November 2021 at par 6. Furthermore, Vicki Mitchell gave evidence that pursuant to the usual customs or traditions of the Aboriginal community in Echuca, the closest member of the family would ordinarily receive all the assets of the deceased: Affidavit, Vicki Marie Mitchell, 15 March 2022 at par 12. Indigenous customary law places greater emphasis on communal obligations.
Both Vicki Mitchell and Muriel Day gave evidence that the Plaintiff is the closest member of the deceased's family. They deposed that she had always provided constant care and support to the deceased, and even once the deceased moved into nursing accommodation, the Plaintiff visited her regularly and provided additional care and comfort: Affidavit, Vicki Marie Mitchell, 15 March 2022 at par 14; Affidavit, Muriel Day, 23 November 2021 at par 19.
In my view, what is of particular relevance, although not determinative, is that both Vicki Mitchell and Muriel Day state that they are of the belief that, according to the laws, customs, traditions and practices of the Indigenous community or group to which the deceased belonged, being the Aboriginal community in Echuca, the Plaintiff would be entitled to all the deceased's assets and belongings: Affidavit, Vicki Marie Mitchell, 15 March 2022 at par 14; Affidavit, Muriel Day, 23 November 2021 at par 19.
Pursuant to the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged, being the Aboriginal community in Echuca, Mr Farkas, as the deceased's biological father, would not be entitled to any of the deceased's assets and belongings, as he was neither a member of the Aboriginal community in Echuca, nor did he have any contact with the deceased: Affidavit, Muriel Day, 23 November 2021 at par 19.
There are, at least, four additional facts of particular significance that indicate he ought to be excluded from benefiting from the deceased's estate. First, he denied paternity and had no contact with the deceased during her life. Secondly, after the deceased's accident in 1993, the Plaintiff was the one who travelled to Melbourne hospital and was by her side every day for a total of two months and continued to visit her every day when the Plaintiff was in hospital in Wagga Wagga. Thirdly, despite having two young children of her own, the Plaintiff took on a significant burden in raising the deceased at home, where she showered and dressed the deceased, cooked all her meals, assisted her with eating and took her to several rehabilitation programs. Fourthly, after the deceased needed full time care and moved into the Glanville Nursing Home, the Plaintiff visited the deceased three to four times a week.
As, effectively the only parent of the deceased with whom the deceased had any involvement, I am satisfied that the Plaintiff is "a person claiming to be entitled to share in an intestate estate under the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous intestate belonged".
In the present case, the "scheme of distribution" is set out in the Amended Summons (in terms similar to the "scheme" noted in Tighe at [50]): SCHEME OF DISTRIBUTION The Applicant, [Emily Higgins], being the mother of the deceased, shall distribute the entirety of the estate of the late Sheree Jane Higgins, unto herself, in accordance with the laws, customs, traditions and practices of the Aboriginal community in Echuca to which the deceased and the applicant both belonged (sic).
A distribution order should be made modifying the operation of the rules of intestacy so as to accommodate the Plaintiff's claim on the deceased's estate and her reasonable expectations of provision from that estate. I am also satisfied that the scheme for distribution is in accordance with the laws, customs, traditions, and practices of the Aboriginal community in Echuca, and that the Plaintiff, as her closest family, ought to be favoured in the distribution of the deceased's estate.
The nature and strength of the personal bonds between the deceased and the Plaintiff, also satisfy me that it would be just and equitable for the Court to make a distribution order in favour of the Plaintiff in the terms that she seeks.
Accordingly, I make the following orders: 1. Orders, pursuant to s 134 of the Succession Act 2006 (NSW), that the whole of the estate of the deceased, be distributed, after payment of debts, funeral and testamentary expenses and costs, to the Plaintiff for her own use and benefit. 2. Orders that the Plaintiff's costs, calculated on the indemnity basis be paid, or retained, as the case may be, out of the estate of the deceased.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 June 2023

Succession Amendment (Intestacy) Act 2009(NSW)

(2018) 97 NSWLR 1106

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