CAG v The Public Trustee of Qld

SUPREME COURT OF QUEENSLAND

CITATION: CAG v The Public Trustee of Qld (as personal representative of the estate of JM, dec'd) [2008] QCA 252

PARTIES: CAG (applicant/appellant) v THE PUBLIC TRUSTEE OF QUEENSLAND as personal representative of the estate of JM, deceased (respondent)

FILE NO/S: Appeal No 3306 of 2008 / SC No 1654 of 2008

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 29 August 2008

DELIVERED AT: Brisbane

HEARING DATE: 18 July 2008

JUDGES: de Jersey CJ, Keane and Fraser JJA / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal dismissed with costs

CATCHWORDS: FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – GENERALLY – where the appellant and the deceased were in a de facto relationship – where the relationship ended prior to the death of the deceased – where the appellant applied under Pt 19 of the Property Law Act 1974 (Qld) for an order adjusting interests in the property of the deceased – whether the right to apply for an adjustment of property rights under Pt 19 of the Property Law Act 1974 (Qld) survives the death of the person against whom the right is asserted so that it may be pursued against that person's estate / Property Law Act 1974 (Qld), s 282, s 283, s 284, s 285, s 286, s 287, s 288, s 315, s 322, s 323 / Succession Act 1981 (Qld), s 66 / Barder v Caluori [1988] AC 20, cited / Kalejs v Minister for Justice and Customs (2001) 111 FCR 442; [2001] FCA 1769, applied / LC v The Public Trustee of Qld [2008] QSC 51, approved / Skene v Dale [1990] VR 605, considered

COUNSEL: D A Savage SC, with M R Bland, for the appellant / A P J Collins for the respondent

SOLICITORS: QBM Lawyers for the appellant / Official Solicitor for the Public Trustee of Queensland for the respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Keane JA. I agree with the order proposed by His Honour, and with his reasons.

KEANE JA: By originating application filed on 25 February 2008, CAG applied to the Supreme Court for an order adjusting interests in the property of JM, deceased, pursuant to Pt 19 of the Property Law Act 1974 (Qld) ("the Act"). The respondent, the Public Trustee of Queensland, was the administrator in intestacy of the estate of the deceased. CAG made her claim on the footing that she and the deceased had been in a de facto relationship which had ceased some time before his death. She claimed a property adjustment order under Pt 19 of the Act because of the contributions she had made to that relationship.

The Public Trustee responded to CAG's application with an application to have her application struck out on the basis that it was commenced after the death of the deceased, and was, therefore, not authorised by Pt 19 of the Act.

The learned primary judge acceded to the Public Trustee's application, and ordered that CAG's claim under Pt 19 of the Act be struck out. His Honour struck out the claim under Pt 19 of the Act on the basis that such a claim was "a statutory right potentially available against him which ceased on his death."¹ His Honour allowed CAG's application to proceed as an application for equitable relief against the estate of the deceased to the extent that she may be able to demonstrate payments by her in respect of the requisition, preservation and maintenance of assets of the estate.

On appeal to this Court, it is argued on CAG's behalf that the right to apply for an adjustment of property rights under Pt 19 of the Act is a right which survives the death of the person against whom that right is asserted so that it may be pursued against that person's estate.

I propose to set out the material provisions of the Act and the salient aspects of the learned primary judge's reasoning before addressing the arguments advanced on CAG's behalf.

The Act

The starting point for a consideration of the material provisions of the Act is the recognition that the provisions of Pt 19 of the Act concerned with the "adjustment of property interests" stand in marked contrast with the other provisions of that Part of the Act concerned with the declaration of rights as between de facto partners. The clear difference is between the declaration of property rights existing at law or equity independently of any judicial decision and rights which owe their existence to the exercise of a judicial discretion to alter the pre-existing rights of the parties.

The provisions of particular relevance in relation to the adjustment of property rights are contained in s 282 to s 288 of the Act. Those sections are in the following terms:

"282 Purpose of sdiv 2

(1)The purpose of this subdivision is to ensure a just and equitable property distribution at the end of a de facto relationship.

(2) This purpose is achieved by–

(a)providing de facto partners who satisfy the requirements mentioned in subsubdivision 2 with particular property rights; and

(b) allowing applications to a court for an adjustment of interests in property.

283 De facto partner may apply

After a de facto relationship has ended, a de facto partner may apply to a court for an order adjusting interests in the property of either or both of the de facto partners.

284 De facto partners or child may benefit from adjustment

The application may be for the benefit of either or both of the de facto partners or a child of the de facto partners.

285 Not affected by other rights

(1)An application may be made under this subdivision whether or not an application for another remedy or relief has been made, or may be made, under this part or another law.

(2) In this section–

law includes a law of the Commonwealth or a State.

286 Court may make property adjustment order

(1) A court may make any order it considers just and equitable about the property of either or both of the de facto partners adjusting the interests of the de facto partners or a child of the de facto partners in the property.

(2)In deciding what is just and equitable, a court must consider the matters mentioned in subsubdivision 3.

(3) It does not matter whether the court has declared the title or rights in the property.

(4) In this section–

adjust, for interests of persons in property, includes give an interest in the property to a person who had no previous interest in the property.

Subsubdivision 2 Requirements for property adjustment proceedings

287 Type of de facto relationship

A court may make a property adjustment order only if it is satisfied–

(a) the de facto partners have lived together in a de facto relationship for at least 2 years; or

(b) there is a child of the de facto partners who is under 18 years; or

(c)the de facto partner who applied for the order has made substantial contributions of the kind mentioned in section 291 or 292 and failure to make the order would result in serious injustice to the de facto partner.

288 Time limit for making application

(1) A court may make a property adjustment order only if–

(a) the application was made within 2 years after the day on which the de facto relationship ended; or

(b) the court has given the applicant leave to apply.

(2) The court may give leave only if it is satisfied hardship would result to the applicant or a child of the de facto partners if leave were not given."

Section 291 and s 292 of the Act identify the contributions which are relevant to a just and equitable property distribution at the end of a de facto relationship.

Section 315 of the Act makes provision for the effect of the death of a party upon proceedings which are on foot at that time. It is in the following terms:

"Effect on proceeding of death of party

If a party to a proceeding for a property adjustment order dies before a final order has been made, a court may make an order if it considers–

(a) it would have adjusted interests in property if the deceased party had not died; and

(b) it is still appropriate to adjust the interests despite the death of the deceased party."

Section 322 and s 323 of the Act are also of some relevance. They provide:

"322 Death of de facto partners irrelevant

A declaration may be made whether or not the person or either of the persons named by the applicant as a de facto partner or de facto partners in the de facto relationship is alive.

323 Effect of declaration

(1) A declaration made by a court has effect as a judgment of the court.

(2) The persons named in the declaration are taken, as stated in the declaration, to have had or not to have had a de facto relationship and to have been or not to have been de facto partners for this part and the Acts Interpretation Act 1954, section 32DA, at the date stated in the declaration, between the dates stated in the declaration or both.

(3) The declaration–

(a) only has effect for the persons, and for the date or during the period, stated in it; and

(b) has effect for the purposes of another Act only to establish whether the persons were, on the stated date or during the stated period, de facto partners of each other, as defined in section 32DA."

The decision below

The learned primary judge summarised the argument put to him on behalf of CAG as follows:

"Mr Bland submitted that, because the applicant’s relationship with the deceased had not existed continuously for the two year period before he died, she did not qualify as a spouse under the Succession Act and would be left in a legislative limbo were she not capable of claiming pursuant to s 287(c). She would be left only with her rights to seek the intervention of equity through a declaration that property was held for her on a constructive trust; see Baumgartner v Baumgartner (1987) 164 CLR 137, 149-150. That remedy was the one intended to be amplified in respect of de facto partners by Pt 19. Part 19 should be read broadly in his submission to cover people in the applicant’s position even where they had not commenced proceedings before the death of the de facto partner against whom she claimed a property adjustment order."²

His Honour rejected that argument, focusing on the negative implication to be drawn from s 315 of the Act. His Honour said:

"The first hurdle facing that argument is that the Act does not provide explicitly that proceedings of this nature may be commenced against the estate of a deceased de facto partner. Where the traditional view of the common law had been that such a claim would constitute a personal right ceasing on the partner’s death, in the absence of some conclusion to be drawn against that result from the proper construction of the relevant statute, one might expect the statute to be rather more forthcoming in making it clear that this particular right was meant to continue against the deceased’s estate.

To the contrary, s 315 of the Property Law Act provides as follows:

'315 Effect on proceeding of death of party

If a party to a proceeding for a property adjustment order dies before a final order has been made, a court may make an order if it considers –

(a) it would have adjusted interests in property if the deceased party had not died; and

(b) it is still appropriate to adjust the interests despite the death of the deceased party.38

…

38 See also the Succession Act 1981, section 66(1) (Survival of actions), '…on the death of any person … all causes of action subsisting against or vested in the person shall survive against, or, …for the benefit of, the person’s estate.'.'

An obvious conclusion to be drawn from the form of the section is that the power in the court to make an order where a de facto partner dies exists only if that partner was already a party to a proceeding commenced while he or she was still alive. In other words it may be treated as an application of the maxim expressio unius est exclusio alterius (the express mention of one thing is the exclusion of another); see Skene v Dale at 608 and Scheps v Cobb [2005] NSWSC 455 at [5]. Mr Collins, for the Public Trustee conceded accurately that that rule of construction must be exercised with caution and should not be applied if it would bring about a result which the legislature is unlikely to have intended; see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 575.

When one examines the Queensland Law Reform Commission Report No 44 on De Facto Relationships, however, the conclusion is reinforced that the intention expressed there was that only applications for adjustment of property rights that had already been commenced were to be allowed to be continued. The progenitor of s 315 was cl 56 of the Bill proposed in the report. It and the discussion about it in the Report read as follows:

'56 Effect on proceeding of death of party

(1) If a party to a proceeding for a property adjustment order dies before a final order has been made, the proceeding may be continued by or against the personal representative of the deceased party.

(2) A court may make an order if it considers that –

(a) it would have adjusted interests in property if the deceased party had not died; and

(b) it is still appropriate to adjust the interests despite the death of the deceased party.

(3) The order may be enforced on behalf of or against the estate of the deceased party.

Provided an application has commenced for an adjustment of property rights, clause 56 allows the application to be continued notwithstanding the death of either of the parties. If the court makes an order altering interests in property, clause 56(3) allows that order to be enforced on behalf of, or against, the estate of the deceased person. There are equivalent provisions in the New South Wales, Northern Territory and Victorian legislation.' (Emphasis added)

Although s 315 was enacted in a slightly different form, its effect seems to me to be the same taking into account the footnote which draws attention to s 66(1) of the Succession Act 1981 dealing with the survival of actions. In my view the appropriate conclusion to draw from the Law Reform Commission Report is that it was intended that proceedings could continue against the deceased’s estate only where they had already commenced. The reference in the footnote to s 315 to s 66(1) of the Succession Act and to the survival of subsisting causes of action also needs to be considered against the background of decisions such as Skene v Dale at 611-612 and King v King at 255-258 to which I have already referred.

When one considers the form of s 315 it is also significant that it gives the Court a discretion whether to make an order if a party to the proceeding dies. It would be anomalous if an application could be brought against the deceased’s estate, after his death, which would not be affected by the Court’s ability to exercise such a discretion in deciding whether to make an order.

It seems to me to follow that s 315 applies to proceedings for property adjustment already on foot and allows them only to continue. Section 322 gives a general jurisdiction to make declarations about the existence or non-existence of de facto relationships whether or not the partners are still alive, for purposes not confined to proceedings for property adjustment, but is not available to enable a proceeding for property adjustment to commence after the death of a de facto partner."³

The appellant's arguments

The principal challenge to his Honour's reasoning advanced on behalf of CAG focuses upon s 66 of the Succession Act 1981 (Qld). It provides relevantly that: "… on the death of any person … all causes of action subsisting against the person shall survive against … the person's estate …" It is contended in the appellant's written submissions that the learned primary judge "did not determine whether the statutory right given by s 283 et seq [of the Act] is a cause of action for the purposes of s 66 of the Succession Act".

It must be said immediately that this criticism is quite unfair to the learned primary judge. His Honour expressly directed his attention to the question whether the right to apply for an adjustment of property rights can be said to be a "cause of action" for the purposes of s 66 of the Succession Act. In this regard, his Honour said:

"If the right under Pt 19 constituted a cause of action subsisting against the deceased for the purposes of s 66(1) of the Succession Act then that subsection provides that it would survive against his estate. The authorities suggest, however, that this type of statutory remedy is a personal right not properly described as a cause of action; see King v King [1974] Qd R 253, 255-258; Skene v Dale [1990] VR 605, 609-610, 611-612 and Read v Nicholls [2004] VSC 66 at [44].

In D’Este v D’Este [1973] Fam 55, 59 in a passage extracted by Kaye J in Skene v Dale at 611-612, Ormrod J (as he then was) characterised this issue of the survival of causes of action by saying:

'It seems to me, first of all, in broad principle that the Act of 1934 was passed to deal with a particular anomalous ruling or common law rule which had existed for centuries, and it was directed essentially to that. It seems to me that one must be extraordinarily cautious in extending or widening the meaning of the phrase 'cause of action,' particularly when one is asked to extend it into a completely different section of the law.

In my judgment, the real answer to this application is this, that the whole of the matrimonial causes legislation, right back to 1857, is essentially a personal jurisdiction arising between parties to the marriage or the children of the marriage. The death of one or other of the parties to the litigation has nothing whatever to do with the old common law rule which was abrogated by the Act of 1934. The fact that these applications abate by death derives, in my judgment, from the legislation which created the rights, if they are rightly called 'rights', and from no other source. If that is correct, then it is not necessary to examine very closely whether or not the administratrix in this case has something which could be called, by any stretch of imagination, a cause of action.'"⁴

The learned primary judge also referred⁵ to the extensive discussion by Kenny J of the Federal Court of Australia of this question of characterisation in Kalejs v Minister for Justice and Customs.⁶ It is appropriate to set out the relevant passage in full:

"The common law distinguished between rights, or causes of action, that were transmissible from the deceased to his or her legal personal representative and rights that were not. Prior to the English Law Reform (Miscellaneous Provisions) Act 1934 (the 1934 Act) and to its legislative counterparts in other common law jurisdictions, it was generally accepted that actions in contract sounding in pecuniary damage, or actions on proprietary rights and the like, were transmissible, although generally actions in tort were not. The latter actions were subject to the doctrine expressed in the maxim, action personalis moritur cum persona (that is, a personal action dies with the person). This meant that a right of action for tort was brought to an end by the death of either party: see, for example, Ryan v Davies Brothers Ltd (1921) 29 CLR 527 at 532; Harris v Lewisham and Guy's Mental Health NHS Trust [2000] 3 All ER 769 at 774. In the United Kingdom, the 1934 Act replaced the common law. A counterpart provision in Victoria is s 29 of the Administration and Probate Act 1958 (the Victorian Act).

Section 29(1) of the Victorian Act is in the following terms:

'Subject to the provisions of this section, on the death of any person, all causes of action subsisting against or vested in him shall survive against or (as the case may be) for the benefit of his estate:

Provided that this sub-section shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other.'

This provision corresponds with s 1 of the 1934 Act in England. Section 29 of the Victorian Act may be rendered applicable to the present proceedings by s 79 of the Judiciary Act: cf Commissioner of Stamp Duties (NSW) v Owens (No 2) (1953) 88 CLR 168.

Section 29 of the Victorian Act, like its counterparts elsewhere, was passed to abolish the common law rule that actions in tort did not survive for the benefit of, or against, the estate of the deceased. Some judges have expressed the view, however, that this legislation is irrelevant to a question of the kind that arises in this case, namely, whether rights under statute are transmissible or not.

This view is implicit in the reasoning of the Full Court of this Court in Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290. The Full Court held in Stephenson that a complaint made to the Commission under the Sex Discrimination Act 1984 (Cth) did not abate on the complainant's death. It reached that conclusion upon a proper construction of the statute under which the relevant rights arose. Although Stephenson did not concern an application for the curial enforcement of a right, the observations of Wilcox J (with whom Jenkinson and Einfeld JJ agreed), as to how a matter of this kind should be approached, are apposite to this case. His Honour stated (at 296-297):

'I do not think that common law rules are relevant to this case. Those rules were evolved by judges as necessary ancillaries to substantive common law principles, also evolved by the judges. They are meaningful only in relation to the common law actions to which they relate. Where a right of action is created by statute, guidance must be sought in the statute itself; a Parliament that creates a cause of action may ordain as it pleases in relation to the cause of action's survival on death of a party. And the same principle applies in relation to a statutory entitlement that falls short of constituting a `cause of action', as lawyers use that term, or a statutory proceeding. If the common law rules are irrelevant, it follows that s 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) is also irrelevant.'

Section 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) is the equivalent of s 29(1) of the Victorian Act.

The Court of Appeal of the Supreme Court of New South Wales pursued a similar analysis in Fines. The Court of Appeal held in that case that a statutory right of appeal, again to an administrative tribunal, in a disciplinary case, which was capable of affecting a deceased teacher's financial entitlement, was transmissible to his legal personal representative. The teacher had died before the determination of the appeal. Mahoney JA stated (at 388-389):

'The question whether statutory rights of this kind are to survive death depends upon the intention of the legislature; there does not appear to be any general or presumptive rule: see Jones v Simes (1890) 43 Ch D 607; Dean v Wiesengrund [1955] 2 QB 120 and the cases there referred to; see the discussion of an analogous question in Mayne v Jaques (1960) 101 CLR 169. Although in terms the right granted to him by the Act may be merely a right of appeal, the grant of that right carried with it the substantive rights, to salary, wages or allowances and the like, referred to in the [Government and Related Employees Appeal Tribunal Act 1989 (NSW)]: see, for example, Mayne v Jaques (at 171-172) per Fullagar J.

...

I see nothing in the terms of the Act or its purposes which leads to the conclusion that the legislature intended that, by the (accidental) fact of death pending the appeal, the right of a member of the teaching service and his family to have such remuneration should be taken away. An appeal might be pending for a significant time. During that time he might not be able to derive income. If a legislative intention is to be inferred, it is I think that the right to claim the discretionary allowance of this should continue notwithstanding his death.'

There are a number of cases in England where the courts have pursued the same kind of analysis in connection with the curial enforcement of statutory rights: see Rickless v United Artists Corporation [1988] QB 40 at 56 and Barder v Caluori [1988] AC 20 at 37.

An alternative approach to the question of the present kind is that adopted by the English Court of Appeal in Harris and, in Victoria, by Kaye J in Skene v Dale [1990] VR 605. In the former case, the English Court of Appeal held that a claim for pecuniary compensation for discrimination contrary to anti-discrimination legislation could survive the death of a complainant upon the basis that the claim was a 'cause of action within the meaning of the 1934 Act': at 774 per Stuart-Smith LJ; at 776 per Mummery LJ (with Ward LJ agreeing with both). On this approach, the critical question would become whether any of the rights formerly vested in Mr Kalejs constituted a 'cause of action' within the meaning of s 29 of the Victorian Act. This was also how Kaye J approached the matter in Skene v Dale at 612-614.

Ultimately, I do not think it matters which is the preferred approach. If, as a matter of statutory construction, the statutory right is not transmissible, then it is not a cause of action that survived Mr Kalejs for the benefit of his estate, within the meaning of s 29(1) of the Victorian Act."⁷

The lengthy discussion by Kenny J in Kalejs v Minister for Justice and Customs serves to make the point that whether or not a right to make an application for relief under a statute abates upon the death of the person on whom that right is conferred, depends very much on the terms of the statute in question.⁸ If one approaches the question, whether the right to apply under s 283 of the Act for an adjustment of property rights as between the parties to a de facto relationship is transmissible, without any presumption in favour of abatement on death, and on the footing that the question is to be resolved as a matter of the proper construction of the Act – which is, after all, the source of the right – then there is powerful support for the view taken by the learned primary judge.

The first point in this regard is, of course, s 315 of the Act. I respectfully agree with what his Honour has written in relation to the negative implications of s 315. On CAG's behalf, his Honour's reasoning was criticised as treating s 315 "as a substantive not merely a procedural regulation where supervening death requires the proceeding to be reconstituted". But this criticism depends upon the accuracy of the characterisation of s 315 of the Act as "merely procedural". This intermediary characterisation of statutory language according to a procedural/substantive dichotomy is an exercise which is not invited by the legislation. It is an exercise which affords little assistance in determining whether the Parliament intended an application under s 283 of the Act to be available to and against the estates of de facto partners. The simpler, and better, course is to have regard to the language which Parliament has used and to give effect to that language.

Approached in this way, s 315 does tend to confirm that the right of one party to a de facto relationship to apply for an adjustment of property rights against the other party to such a relationship presupposes that each of these parties is alive.

Similarly, the terms of s 322 and s 323 of the Act confirm that, while declarations of pre-existing rights may be made notwithstanding the death of one of the parties to the de facto relationship, the possibility of making an order for property adjustment where one of the parties to the relationship is deceased depends on the operation of s 315 of the Act.

Next it should be noted that the only right created by s 283 is to make an application for an adjustment, that is to say, to seek an alteration of existing property rights. If that application is successful, new property rights will be created by judicial decision, but until that decision is made and the property rights of the parties are altered, the only relevant right vested in a person who has been a party to a de facto relationship is a right to make an application. It may be accepted that, in some statutory contexts, a bare right to apply for discretionary relief can be described as a "cause of action"; but in the context of the Act that description is distinctly awkward. The right conferred by s 283 is couched in terms whereby it is exercisable by "a de facto partner" in relation to the property of "either or both of the de facto partners". It is impossible to suppose that the right to apply conferred on a de facto partner by s 283 of the Act could be exercisable by the estate of a deceased de facto partner; and CAG's Counsel did not suggest otherwise. The reference to the right of a de facto partner to apply under s 283 of the Act must be to a living de facto partner. There is no reason evident from the text of the Act to treat the later reference in s 283 to de facto partners as having a different and more expansive meaning encompassing deceased de facto partners.

Thirdly, quite apart from the actual text of the legislation, it is also important to recognise that if the position were otherwise, the remarkable result would ensue that Pt 19 of the Act, which was intended to provide for the adjustment of property rights as between de facto spouses, would be given a wider operation than the provisions of s 79 of the Family Law Act 1975 (Cth) in relation to the adjustment of property rights which the Act was intended to emulate.

Applications under s 79 of the Family Law Act may be made only by and against parties to a marriage alive at the date of dissolution. In Skene v Dale,⁹ Kaye J explained:

"By s 79(1) of the Family Law Act 1975 the court is empowered to make orders in respect of the property of the parties to a marriage, including an order for settlement of property. By sub-s (1A) of s 79 it is provided that after the death of a party to the proceedings an order made under the subsection may be enforced on behalf of or against, as the case may be, the estate of the deceased party. Other express provisions in the Act relate to proceedings against the estate of a deceased person. In Sims v Sims (1981) FLC 91-072 the Full Court of the Family Court considered whether an application for a property settlement made after a decree nisi for dissolution of the marriage by a wife and heard but not determined before the husband's death, abated by reason of the latter's death. Their Honours, at 76,534, said: 'The jurisdiction of this Court is based entirely on statute. Save as expressly provided, this statute does not confer any general power on this Court to entertain proceedings against or by the legal personal representative of a deceased party nor is there power to continue proceedings after the death of a party by substituting that party's personal representative as a party in lieu of the deceased party.'

After referring to authorities relating to provisions of the Act, their Honours continued: 'In summary, a claim under sec 79 is not a 'cause of action' within the meaning of the Law Reform (Miscellaneous Provisions) Act 1941. The provisions of the Family Law Act 1975 support the view that, save for specific exceptions, proceedings for financial relief under the Act must be instituted and completed during the joint lives of the parties, and there is nothing in this Act which shows an intention that uncompleted proceedings instituted during the joint lives of the parties should continue after the death of one of them.'

The court concluded that the claim of a wife or husband abates upon the death of the other party.

The authorities to which I have referred were concerned with maintenance and property proceedings under the provisions of matrimonial causes statutes, and therefore are unlike the matters to which Pt IX of the Property Law Act are directed. Yet there are analogous features of both forms of the statutory provisions. Part IX, like the matrimonial causes enactments, is concerned with property matters arising out of a particular form of relationship which exists or has existed between a male person and a female person. Both enactments provide (and provided in the case of former matrimonial causes enactments) procedure whereby the court may determine the title, right or interest of a party to the relationship in respect of real property. The title, right or interest of such persons in those relationships was and is unknown to the common law. Both forms of enactments do not provide for the commencement of proceedings for the court's determination of the property right or interest after the death of one of the parties to the relationship. Consequently the procedure being personal and derived from statute, the procedural right of a party to the relationship abates upon death, whether or not it may be described as a 'cause of action'.

Because of common features of the matrimonial causes enactments and of Pt IX of the Property Law Act, I consider that the authorities to which I have referred, in particular D'Este v D'Este and Diamond v Diamond, are relevant when determining whether a personal right under Pt IX, which was not claimed by application before the death of a partner to a de facto relationship, survives by operation of s 29(1) of the Administration and Probate Act. Consequently, I consider that in the present case any procedural right which the plaintiff might have had against Mrs Marks was not subsisting at the time of her death, and that therefore s 29(1) is not capable of being invoked in his aid."

The Explanatory Notes which accompanied the enactment of Pt 19 of the Act stated:

"as the Bill reflects the corresponding provisions of the Family Law Act 1975 (Cwlth), any court in construing the provisions of the Bill should have regard to the case law and principles applicable to the Family Law Act 1975"

and that

"the matters to be considered closely reflect the matters that may be considered by the Family Court under the Family Law Act 1975 …"¹⁰

If it were the intention of the legislature that the operation of s 283 of the Act is to extend to claims against deceased de facto spouses, one would expect, not only that such an intention would be made clear by the text of the Act, but also that the intention to achieve that result would be announced, with the appropriate fanfare, by the explanatory notes. Moreover, one would expect that there would have been some explicit reconciliation between the "family provision" regime in s 41 of the Succession Act and the property adjustment regime presently under consideration. On the appellant's view, the two regimes would have an overlapping operation. At the very least, one would expect some recognition of that overlapping operation.

It should also be noted that the Queensland Parliament enacted Pt 19 of the Act after the decision of Kaye J in Skene v Dale had expounded an analogous Victorian statute. Kaye J had held that the Victorian analogue of s 283 of the Act does not enable the surviving partner of a "de facto" relationship to apply for relief after the death of the other. The Victorian analogue of s 283 provided that a "de facto" partner may apply for an order for the adjustment of interests with respect to the real property of one or both of the "de facto" partners.¹¹

It is inconceivable that the Queensland legislature intended to achieve a result different from that reached by the compelling reasoning of Kaye J, but failed to use language materially different from that discussed by Kaye J in order to achieve that result.¹²

Conclusion and orders

In my respectful opinion, the decision of the learned primary judge was clearly correct.

The appeal should be dismissed with costs.

FRASER JA: The question in this appeal is whether a de facto partner may apply for a property adjustment order under Part 19 of the Property Law Act 1974 (Qld) after the death of the other de facto partner.

The primary judge held that the right to make such a claim was a statutory right potentially available against the other de facto partner which ceased on that de facto partner’s death. ¹³

I have had the advantage of reading the reasons given by Keane JA for his Honour’s conclusion that the primary judge was clearly correct. I agree with those reasons and with his Honour’s conclusion.

Keane JA’s reasons explain the context in which the question arises and set out the relevant statutory provisions and passages from the primary judge’s reasons. I will therefore repeat those matters only to the extent that it is necessary to explain my additional reasons for dismissing the appeal.

Subdivision 2 of Division 4 of Part 19 of the Property Law Act 1974 (Qld) ("PLA") empowers courts to make orders adjusting the interests of de facto partners or a child of them in the property of either or both de facto partners. Subsection 282(1) of the PLA provides that the purpose of subdivision 2 is to ensure a just and equitable property distribution at the end of a de facto relationship. Section 283 provides:

“283 De facto partner may apply

After a de facto relationship has ended, a de facto partner may apply to a court for an order adjusting interests in the property of either or both of the de facto partners.”

Section 286 provides:

“286****Court may make property adjustment order

A court may make any order it considers just and equitable about the property of either or both of the de facto partners adjusting the interests of the de facto partners or a child of the de facto partners in the property.

In deciding what is just and equitable, a court must consider the matters mentioned in subsubdivision 3. [Subsubdivision 3 (Matters for consideration in deciding what is just and equitable)]

It does not matter whether the court has declared the title or rights in the property.

In this section—

adjust, for interests of persons in property, includes give an interest in the property to a person who had no previous interest in the property.”

Section 315, which is of particular importance here, is reproduced in the primary judge’s reasons set out below.

The appellant claimed that JM was her de facto partner for a period that ended some time before he died. After JM died, the appellant filed an originating application claiming against the respondent, as the personal representative of the deceased’s estate, a property adjustment order "adjusting interests in the property of [JM], deceased, intestate”.

The primary judge’s reasons for construing s 283 as not comprehending applications made after the death of a de facto partner included the following:

“[18]The first hurdle facing that argument is that the Act does not provide explicitly that proceedings of this nature may be commenced against the estate of a deceased de facto partner. Where the traditional view of the common law had been that such a claim would constitute a personal right ceasing on the partner’s death, in the absence of some conclusion to be drawn against that result from the proper construction of the relevant statute, one might expect the statute to be rather more forthcoming in making it clear that this particular right was meant to continue against the deceased’s estate.

[19]To the contrary, s. 315 of the Property Law Act provides as follows:

"315****Effect on proceeding of death of party

If a party to a proceeding for a property adjustment order dies before a final order has been made, a court may make an order if it considers –

(a)it would have adjusted interests in property if the deceased party had not died; and

(b)it is still appropriate to adjust the interests despite the death of the deceased party. [See also the Succession Act 1981, section 66(1) (Survival of actions), ‘…on the death of any person … all causes of action subsisting against or vested in the person shall survive against, or, …for the benefit of, the person’s estate.’]"

[20]An obvious conclusion to be drawn from the form of the section is that the power in the court to make an order where a de facto partner dies exists only if that partner was already a party to a proceeding commenced while he or she was still alive. In other words it may be treated as an application of the maxim expressio unius est exclusio alterius (the express mention of one thing is the exclusion of another); see Skene v Dale at 608 and Scheps v Cobb [2005] NSWSC 455 at [5]. Mr Collins, for the Public Trustee conceded accurately that that rule of construction must be exercised with caution and should not be applied if it would bring about a result which the legislature is unlikely to have intended; see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 575.

[21]When one examines the Queensland Law Reform Commission Report No 44 on De Facto Relationships, however, the conclusion is reinforced that the intention expressed there was that only applications for adjustment of property rights that had already been commenced were to be allowed to be continued. The progenitor of s. 315 was cl. 56 of the Bill proposed in the report. It and the discussion about it in the Report read as follows:

**"56.**Effect on proceeding of death of party

*(1)*If a party to a proceeding for a property adjustment order dies before a final order has been made, the proceeding may be continued by or against the personal representative of the deceased party.

*(2)*A court may make an order if it considers that –

*(a)*it would have adjusted interests in property if the deceased party had not died; and

(b) it is still appropriate to adjust the interests despite the death of the deceased party.

*(3)*The order may be enforced on behalf of or against the estate of the deceased party.

Provided an application has commenced for an adjustment of property rights, clause 56 allows the application to be continued notwithstanding the death of either of the parties. If the court makes an order altering interests in property, clause 56(3) allows that order to be enforced on behalf of, or against, the estate of the deceased person. There are equivalent provisions in the New South Wales, Northern Territory and Victorian legislation.” (Emphasis added.)

[22]Although s. 315 was enacted in a slightly different form, its effect seems to me to be the same taking into account the footnote which draws attention to s. 66(1) of the Succession Act 1981 dealing with the survival of actions. In my view the appropriate conclusion to draw from the Law Reform Commission Report is that it was intended that proceedings could continue against the deceased’s estate only where they had already commenced. The reference in the footnote to s. 315 to s. 66(1) of the Succession Act and to the survival of subsisting causes of action also needs to be considered against the background of decisions such as Skene v Dale at 611-612 and King v King at 255-258 to which I have already referred.”

Section 283, like s 286(1), operates with reference to "the property of either or both of the de facto partners”. That expression is not apt to include property that, upon the death of a de facto partner, has devolved to and vested in the Public Trustee by force of s 45 of the Succession Act 1981(Qld). The problem is exposed by the terms of the appellant’s claim, which seeks an order "adjusting interests in the property of [JM], deceased, intestate”. As Kaye J held in Skene v Dale¹⁴ in relation to similar statutory provisions, upon a literal construction of s 283 it does not authorise an application about the property of the personal representative of a deceased de facto partner.

Of course the literal meaning of a statutory provision is not necessarily its proper construction, but paragraphs 19 – 22 of the primary judge’s reasons persuasively support the unsurprising conclusion that the proper construction of s 283 accords with its literal meaning.

The appellant contends that the primary judge erred by assuming, in paragraph 18 of his Honour’s reasons, that the right to apply conferred by s 283 would abate on death unless there were some indication to the contrary. Putting aside any such assumption, however, it remains the case that the legislative purpose, the statutory context and the literal meaning all point in the same direction: s 283 does not authorise an application about the property of the personal representative of a deceased de facto partner.

An important factor in the primary judge’s reasoning was the conclusion that the fact that s 315 confers power to make orders against a deceased de facto partner only where that partner was a party to a proceeding commenced while he or she was still alive tells against the existence of an unlimited power to make such orders. The appellant seeks to avoid that implication by her contention that s 315 is merely, as it was put by her senior counsel, a "procedural regulation where supervening death requires the proceeding to be reconstituted".

There was no need for the legislature to enact any “procedural regulation” of the kind upon which the appellant’s contention is premised because the necessary procedure has long been provided in the rules of court.¹⁵ Consistently with the presence of that long standing form of regulation, s 315 does not in fact specify any “procedure” to be adopted as a result of a death occurring after the commencement of an application. Rather, it defines the approach the court is required to adopt when it is deciding whether or not to make a property adjustment order.

That is relevant to another feature of the statutory scheme that provides powerful support for the primary judge’s conclusion: the statutory criteria with reference to which an application under s 283 must be considered imply that both de facto partners remain alive when the property adjustment order is made.

In deciding what order is "just and equitable" s 286(2) requires the court to consider a variety of matters, including the financial and non-financial contributions made by or for the de facto partners or a child of those partners (s 291) and the contributions made by those persons to the welfare of the de facto partners or their family (s 292).

More importantly for present purposes, other criteria focus upon the present and future financial position and personal welfare of each of the de facto partners. Thus s 293 requires the court to consider the effect of any proposed order on the earning capacity of the de facto partner. Similarly, amongst the matters that s 296 requires the court to consider to the extent that they are relevant in deciding what order is just and equitable are: "the age and state of health of each of the de facto partners" (s 297); their income, property and financial resources and capacity for appropriate gainful employment (s 298); whether either de facto partner has the care of a child of the de facto partners (s 299); the de facto partners' commitments (s 300); the responsibilities of either of them to support another person (s 301); and, if the de facto partners have separated, "what standard of living is reasonable for each of them" (s 303). Those criteria are capable of sensible application only upon the premise that both de facto partners are alive.

Nor, contrary to a submission made for the appellant, does s 315 detract from the resulting implication that s 283 only authorises an application for a property adjustment order where both parties are alive when the application is made. As I mentioned earlier, where s 315 applies it defines the approach that the court is required to adopt when it is deciding whether or not to make a property adjustment order. In that exceptional case, s 315(a) requires the court to embark upon the hypothetical exercise of determining whether or not it would have made a property adjustment order “if the deceased partner had not died”. Thus s 315 operates in a way that is consistent with the statutory command in s 286(2) that, in deciding what is just and equitable, the court “must” consider criteria which are premised upon both de facto partners being alive. However, s 283, which the appellant must invoke to justify her application, plainly does not permit the court to adopt the special hypothesis exceptionally required by s 315.

The clear implication is that, other than for the exceptional case in which s 315 applies, an application for a property adjustment order must be determined during the joint lives of the de facto partners.¹⁶ That being so, s 283 should not be construed as authorising the making of an application for a property adjustment order after the death of either of the de facto partners.

I agree with the orders proposed by Keane JA.

Footnotes

1. LC v The Public Trustee of Qld [2008] QSC 51 at [28]. ↩

2. [2008] QSC 51 at [17]. ↩

3. [2008] QSC 51 at [18] – [24]. ↩

4. [2008] QSC 51 at [4] – [5]. ↩

5. [2008] QSC 51 at [10]. ↩

6. (2001) 111 FCR 442 at 446 – 448 [15] – [21]. ↩

7. [2008] QSC 51 at [10]. ↩

8. See also Barder v Caluori [1988] AC 20 at 37. ↩

9. [1990] VR 605 at 612 – 614. ↩

10. Explanatory Notes, Property Law Amendment Bill 1999 at 10 – 12. ↩

11. [1990] VR 605 at 607. ↩

12. It may also be noted that the Queensland Law Reform Commission Report No 44 which led to the enactment of Pt 19 of the Act referred to the provisions of the Victorian legislation, but expressed no dissatisfaction with the decision in Skene v Dale. ↩

13. LC v The Public Trustee of Qld [2008] QSC 51 ↩