Relationships Act 2003

Supreme Court of Tasmania (Full Court)|2017-10-13|Before: Pearce JJ, Marshall AJ, Brett J, Estcourt J

For the reasons given by Estcourt J, all of the grounds of appeal which challenge the first three of the trial judge's findings should fail. That is sufficient to dispose of the appeal. Having made the findings of fact and law that the significant relationship had existed for the two years immediately before Mr McGarry's death, the conclusion reached by the trial judge on the final question was not determinative of the action. However, this appeal also challenges that conclusion. It is a question of statutory construction which, in my view, is attended by doubt. Given the decision of the majority of this Court, it is not necessary that I express a final view and I would prefer to not do so.

I agree with the reasons for judgment of Estcourt J.

Relationships Act 2003

Brownell v Robinson [2017] TASFC 11 (13 October 2017)

JUDGMENT: Brownell v Robinson [2017] TASSC 5

Ashton v Pratt (No 2) [2012] NSWSC 3, distinguished.

R v Arnold [1998] VSCA 34, referred to.

Sadiq v NSW Trustee & Guardian [2015] NSWSC 716, distinguished.

The relief sought by the appellant in the proceedings below was an order revoking the grant of administration of the estate of Mr McGarry (the deceased), to the respondent. The power to revoke or set aside such a grant is derived from s 6(5) of the Supreme Court Civil Procedure Act 1932. A grant of administration in common form, in the voluntary or non-contentious jurisdiction of the Court, is revokable at the instance of a person whose interests are adversely affected by it. An established basis for the revocation of a grant is that it was made to a person who was not entitled to it. See Lindsay J's encyclopaedic decision in this area of the law in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [102]- [210].
By virtue of s 13 of the Administration of Probate Act 1935, where a deceased has died wholly intestate, administration shall be granted "to some one or more of the persons interested in the residuary estate of the deceased". Rule 22 of the Probate Rules 1936 sets out the priority of right to a grant of administration. That priority essentially follows the order in which persons become entitled to the estate of an intestate under the Intestacy Act 2010.
Section 12 of the Intestacy Act provides that if an intestate leaves a spouse but no issue, the spouse is entitled to the whole of the intestate estate. If the respondent was not the deceased's spouse at the time of his death within the meaning of the Intestacy Act, s 6, then she had no entitlement to a grant of administration.
It followed, the learned primary judge noted, that the grant of the relief sought by the appellant depended on a finding that at the time of the deceased's death, the respondent was not his spouse within the meaning of s 6 of the Intestacy Act.
It was common ground that the deceased and the respondent had never been married and their relationship had never been registered under the Relationships Act 2003, and that although they had conceived a child together in the early stage of their relationship, the pregnancy had not resulted in the birth of a child, and further efforts at conception through an IVF program had proved unsuccessful.
Accordingly, as the learned trial judge noted, the only applicable basis for a finding that the respondent was the deceased's spouse was s 6(c)(i) of the Intestacy Act. Section 6 of that Act provides in full as follows:

18 In the case of a claim against a deceased estate founded on the oral utterances of the deceased, which only the deceased could have denied, the Court scrutinises the claimant's evidence closely [Plunkett v Ball [1915] HCA 14; (1915) 19 CLR 544, 548-549 (Isaacs J); Bovaird v Frost [2009] NSWSC 337, [45]; Varma v Varma [2010] NSWSC 786, [418]-[422]], and although there is no absolute legal requirement for it, ordinarily looks for some corroboration [Re Hodgson (1886) 31 Ch D 177; Weeks v Hrubala [2008] NSWSC 162, [20] (Young CJ in Eq)]."

"11 The learned trial judge erred in law when making findings of fact by attributing too much weight to his perceptions of the demeanour and credibility of witnesses when giving evidence contrary to established principles enunciated in authorities including Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588 and CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1."

"It has frequently been emphasised how important is the giving of reasons to the process of judicial decision-making: see, for example, De Iacovo v Lacanale [1957] VicRp 78; [1957] VR 553 at 557-9 (where the earlier cases are recounted); Pettitt v Dunkley [1971] 1 NSWLR 376 at 380-2 (where again earlier authorities are recounted); Palmer v Clarke (1989) 19 NSWLR 158 (where the nature of 'the common law duty' imposed upon a judge was emphasised); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, especially at 278-81 per McHugh JA, and Sun Alliance Insurance Ltd. v Massoud [1989] VicRp 2; [1989] VR 8 at 19-20 per Gray J. In stating the relevant principles, it is always accepted that there is no universal obligation on the decision-maker, even though it be a court, to give reasons (for which proposition Brittingham v Williams [1932] VicLawRp 35; [1932] VLR 237 at 239 is commonly cited) and what is sufficient by way of reasons in a given case will always depend upon the circumstances (of which Wightman v Johnston [1995] VicRp 81; [1995] 2 VR 637 is a recent example). In at 280, McHugh JA (as he then was) said that 'the extent of the duty to give reasons is related 'to the function to be served by the giving of reasons' (quoting Mahoney JA in at 386). McHugh JA also pointed out (as did Gray J in ) that the obligation to give reasons could no longer be seen as dependent upon the existence of a right of appeal: as to which see at 386 and at 666-7 per Gibbs CJ (although of course the hearing of an appeal has often provided the occasion for pointing out the difficulties created by the absence of reasons below). The duty to give reasons, qualified though it is, can be recognised now as 'an incident of the judicial process'."

52 In his submissions on this question, Mr Gunson referred to comments of Dutney J in S v B [2004] QCA 449, [2005] 1 Qd R 537. The relevant comments are summarised by his Honour at [48]:

Legislation Cited (1)

Brownell v Robinson [2017] TASFC 11

At a glance

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Legislation Cited (1)

Cases Cited (22)

Brownell v Robinson [2017] TASFC 11 (13 October 2017)