Jones v Public Trustee of Qld & Anor [2004] QCA 269

Official Solicitor to the Public Trustee of Queensland (Brisbane) for the first respondent

[1] McPHERSON JA: Elliott Bennett became the Australian bantam weight boxing champion in 1948. In the course of his career he engaged in many prize fights and succeeded in winning a good deal of money. Because he was an Aboriginal, his earnings were controlled by a public officer known originally as the Director of Native Affairs appointed by the Governor in Council under the Aboriginals Preservation and Protection Acts 1939 to 1946; and later the Director of Aboriginal and Island Affairs under a subsequent Act of 1965. Powers conferred by one or both of those Acts enabled and authorised the Director to manage the property of an Aboriginal person. The Director did so until Elliott Bennett died intestate on 10 December 1981.

[2] On 25 March 1982 the Public Trustee was authorised by order of the Supreme Court to administer the deceased's estate. Mr Bennett had never married but he left four children, one of whom, Roger Bennett, has since died. His estate is being administered in the Northern Territory. The deceased also left a de facto wife, Ms Sheila Little, who claimed to apply under Part V of the Succession Act 1981 for provision out of the estate. On 8 May 1984, she and the four children as next of kin, or "intestacy beneficiaries" as they are being called in this case, executed a deed of compromise by which, in satisfaction of her claim, the net estate was divided among them all in equal shares. Administration of the intestate estate was completed on 14 April 1988.

[3] The late Mr Bennett was one of the Dalungdalee people of Fraser Island of whom the senior elder or eldest is John Dalungdalee Jones, who was, until the orders appealed against, the plaintiff in this proceeding (no 2209 of 2003) in the Supreme Court and the appellant in this appeal. His investigations of Mr Bennett's affairs have persuaded him that not all of the money received by the Director on behalf of Mr Bennett, including a sum of some $13,262 in prize money or wages, has been accounted for. The total missing is said at today's appreciated values to be worth many millions of dollars. In the interests of those entitled to it and as an aspect of his duty as senior elder or eldest, Mr Jones has instituted these proceedings. His claim is made under s 52(2) of the Succession Act 1981 and also under Rule 643(1) of the Uniform Civil Procedure Rules governing civil proceedings in Queensland. Section 52(2) enables the Court to make such order as it thinks fit, including an order for damages or one requiring interest to be paid, against a personal representative who neglects to perform his duties of collecting the personal estate of the deceased and administering it according to law.

[4] Rule 643(1) applies if an executor, administrator or trustee neglects or refuses to comply with a beneficiary's written request under paragraph (c) of that Rule "to pay or hand over any legacy or residuary bequest" to the person entitled to it. In the case of someone who like Mr Bennett died intestate, there is an insuperable obstacle to applying the Rule because there is no will and necessarily therefore no legacy or residuary bequest on which Rule 643(1)(c) can operate. Paragraphs (a) and (b) of Rule 643(1) are confined to the transfer or transmission of land or interests in land, or their registration, and so have no application to a case like this where the claim is directed to a failure to account for or pay personal property in the form of money alleged to have been received on behalf of the intestate.

[5] Since the proceeding was started in the Supreme Court on 11 March 2003, there have been several applications and hearings of one kind or another before different Judges of the Court. Those from which the present appeal arises comprised: (1) an application by Mr Jones as plaintiff to set down the proceeding for trial; (2) an application by the Public Trustee as first defendant for summary judgment on the basis that there is no prospect of the claim for relief succeeding; and (3) an application by the State of Queensland as second defendant to strike out the statement of claim essentially on the ground that it is impossible to plead to it. On 9 February 2004, White J, before whom the applications came, refused the plaintiff's application to set the matter down for trial. Her Honour made the following further orders:

"2. One or more of the intestacy beneficiaries of the estate of Mr Elliott Bennett be substituted as Plaintiff or Plaintiffs to this proceeding by 9 April 2004.

3. If one or more of the intestacy beneficiaries of the estate of Mr Elliott Bennett are substituted as Plaintiff or Plaintiffs by 9 April 2004:

(b) the substituted Plaintiff or Plaintiffs be given leave to re-plead by 9 July 2004.

4. If one or more of the intestacy beneficiaries of the estate of Mr Elliot Bennett are not substituted as Plaintiff or Plaintiffs by 9 April 2004, the Amended Statement of Claim be struck out with no leave to re-plead.

5. It shall be sufficient, for the purpose of Order 4 above, that the Defendants' Solicitors file with the Registrar an affidavit deposing to non-compliance with that Order.

6. The present Plaintiff pay the Defendants' costs of and incidental to the Application filed 13 January 2004 and the costs of and incidental to the hearings on 5 February 2004 and 9 February 2004 in the Applications filed on 11 and 15 April 2003 in any event."

It is against these orders that this appeal has been brought by Mr Jones.

[6] The orders sought in the notice of appeal are simply that the appeal be allowed with costs, which no doubt signifies that the order to set down for trial is still being pursued, and perhaps also that the other orders made by her Honour should be set aside. However, since proceeding no 2209 of 2003 was instituted on 11 March 2003 there have been other developments which must be mentioned. The three children and intestacy beneficiaries still surviving are Ms Carmel Burke, Mrs Sharon Davidson and Mr John Bennett. On 23 June 2003, they entered into a deed of that date with Mr Jones, to which Mr Roger Bennett was not a party, by which they agreed to assign to Mr Jones a "one sixth share ... of the estate, right, title, benefit and interest to which each of the beneficiaries is or may be entitled in and to the real and personal estate of the deceased in intestacy together with all income arising there [from] from the date of death".

[7] The next event resulted from the second order made by White J on 9 February 2004. It was that one or more of the intestacy beneficiaries of the estate of Mr Elliott Bennett be substituted as plaintiff or plaintiffs in that proceeding. In response to it, the three surviving children instructed solicitors who now act for them in proceeding no 2209 of 2003. On 7 April 2004 those three intestacy beneficiaries were substituted as plaintiffs in the proceeding upon their filing an amended statement of claim in the Supreme Court. Each of them has sworn that they do not wish to be represented by Mr Jones and have called on him to discontinue the appeal. Ms Dalton of counsel, who appears for them on the appeal, has applied for an order under Rule 750(1) of the UCPR for the removal of Mr Jones as a party to the appeal and the substitution of her clients in his place.

[8] The deed dated 23 June 2003 was entered into by Mr Jones for the purpose of acquiring the necessary status or standing to pursue the primary application in the proceeding for the orders sought against the Public Trustee under s 52(2) of the Succession Act and Rule 643(1) of the UCPR. At best for Mr Jones, the deed according to its literal terms, assigns or agrees to assign to him a one sixth share in the capital and income of the intestate estate or what remains of it. I pass over the fact that Roger Bennett was not a party to the deed. If it is assumed that money or other assets came into the hands of the Director that were not accounted for by him to the Public Trustee, it could be said that he, or possibly his successor, remains liable for them in the character of a trustee. It may be that it is in this capacity that the State of Queensland is sued as second defendant as being in some way legally liable for the acts of the Director and so becoming responsible to account for those assets, if any, to Mr Jones as an assignee under the deed in respect of a sixth part or a share of them. Such a claim is perhaps not altogether implausible if made by persons having standing to sue; but in present circumstances it would require a good deal more than this bare recital to persuade me that it is shown to be a claim that is sustainable by Mr Jones as plaintiff.

[9] The claim which Mr Jones is pursuing here against the Public Trustee is made under s 52(2) of the Succession Act. Such a claim is capable of being made only against a "personal representative" who neglects to perform his or her duties "as aforesaid". That expression in s 52(2) refers to the duties specified in s 52(1) of the Act, which in s 52(1)(a) includes the duty to:

"(a) collect and get in the real and personal estate of the deceased and administer it according to law."

In legal theory, a personal representative, like the Public Trustee in this case acting as administrator of Mr Bennett's estate, becomes in law a trustee when the administration is completed as it is said to have happened here on 14 April 1988. But that does not mean that the Public Trustee thereupon ceases to be a personal representative (see Solomon v Attenborough [1912] 1 Ch 451, 458, 461) either generally or within the meaning of s 52(2); or that he is incapable of being made the subject of an order under that provision.

[10] On the other hand, it is clear that s 52(2) affords a remedy not just to anyone and everyone who chooses to interest himself in the affairs of a deceased estate, but only to one who, as provided in s 52(2), is a "person aggrieved" by the neglect of the personal representative to perform a duty imposed by s 52(1). The expression "person aggrieved" is no doubt one of wide import, but it excludes mere busybodies (Re Whitehouse [1982] Qd R 196, 204); and the classic exposition of James LJ in Re S, ex p Sidebotham [1880] 14 Ch D 458, 465, requires that the applicant be someone who has "suffered a legal grievance ... which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something". See also Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 530-531. No doubt, as Macrossan J accepted in Re Whitehouse, the phrase is one that can have different meanings in different statutes; but the statutory context here is the Succession Act, which in s 52 is concerned with those interested in deceased estates being administered by personal representatives; and not with those who, like Mr Jones in this instance, have, with full knowledge of the existing state of affairs purported to take an assignment of the prospect of recovering for a breach of statutory duty under the section. Whether an assignment of what, on one view, appears to be a bare right to litigate; or, on another, a right to a part of a future chose in action or interest in an incompletely administered estate, is something that is capable at law or in equity of being assigned by deed without valuable consideration is also a matter that may merit attention on some future occasion. Cf ; , 24. ; , 513.

[11] Mr Jones, it should clearly be understood, has undertaken his intervention in this proceeding not out of any motive of personal or monetary gain for himself; but, instead, in the performance of what he conceives to be his duty as the senior elder of the Dalungdalee people, of whom the three surviving children of the late Mr Elliot Bennett are members, whom he claims to be entitled and bound to represent. There are, however, reasons why UCPR 75(1) providing for proceedings by him in representative form are not now available or appropriate here. One is that Mr Jones does not share with the surviving intestacy beneficiaries the same interest needed to satisfy the terms of that rule. Ms Burke, Ms Davidson and Mr John Bennett are children of the deceased and as such are, together perhaps with the estate of Roger Bennett, invested by the Succession Act with the sole right as next of kin to share in what remains of their father's intestate estate. Another and more compelling reason is that they have now taken the step of joining as individual named plaintiffs by filing the amended statement of claim, and are asking to be substituted as the appellants in this appeal, which they do not wish to prosecute. Even if they had previously agreed to being represented by Mr Jones, they are not bound by that decision and are free to revoke their consent or instructions to him. The deed of 23 June 2003 does not purport to confer on Mr Jones an enduring authority to act for them, nor anything in the nature of a power of attorney coupled with an interest that would or might be irrevocable. His power to act for them in the proceeding has now been terminated by their own decision.

[12] Subject only to what follows, the appeal must therefore be dismissed. What follows is directed to the submissions by Mr Jones that her Honour's decision and orders were incorrect because they failed to take account of Aboriginal traditional or customary law on the subject. It is not altogether easy to appreciate the relevance of this submission once Mr Jones has, in accordance with the Rules, been effectively removed as plaintiff in the proceeding and the three intestacy beneficiaries have been substituted as plaintiffs in his place. As I understand the argument, however, Mr Jones is saying that Aboriginal traditional or customary law controls each of these steps, and that, in the interpretation of the Uniform Civil Procedure Rules and the determination of this appeal, it prevails. It does so, he submits, for two reasons, one of which is the provisions of the Native Title Act 1993 (Cth) and the other s 10 of the Racial Discrimination Act 1975 (Cth).

[13] The fundamental problem with each of the possible formulations of these submissions is the absence of any evidence of the alleged traditional or customary law relied on or of its precise content. Essentially it comes down to saying that Mr Jones has by customary law the duty and no doubt the right to represent members of his people. Even if that is acknowledged, and if it were also conceded to extend to proceedings in a court of law, it fails to establish that in consequence the intestacy beneficiaries lack or are deprived of authority to decide for themselves whether it will be he or someone else who will act on their behalf in this proceeding. To find that Aboriginal customary law denies them as individuals such a right of choice might well suggest that it is unreasonable or inconsistent with the common law, and therefore not capable of being recognised under the law of Queensland or Australia: Mabo v Queensland [No 2] (1992) 175 CLR 1, 59, 161, citing Case of Tanistry (1608) Davis Rep (Ir) 78, 92 (Evans transl. Dublin 1762). But it is not necessary to go to those lengths. As Kirby P pointed out in Mason v Tritton (1994) 34 NSWLR 572, 584, it is necessary before a traditional law or custom can be successfully relied on that it satisfy a number of requirements, of which the fourth is that the right claimed is sought to be relied on in the exercise of traditional Aboriginal laws and customs. Apart altogether from the other three requirements, Mr Jones's claim falls at this hurdle. There is no evidence that among the Dalungdalee people of Fraser Island there was or is a continuing custom that the eldest member is entitled to insist on representing individuals, whether in or out of litigation, without their consent and in spite of their expressed wish that he should not do so; and no evidence that the intestacy beneficiaries are here seeking to exercise any such right.

[14] On this ground alone, and even if other issues are disregarded, Mr Jones's submission based on Aboriginal customary law must fail. It may, in any event, be added that it appears to be based on a misconception of what was decided by the High Court in Mabo v Queensland [No 2] (1992) 175 CLR 1, and the subsequent Commonwealth legislation which gave statutory effect to it. What Mabo [No 2] decided was not that Aboriginal customary law prevailed over introduced common and statute law of Queensland; but rather that the act of state of acquiring territorial sovereignty or "radical title" does not, without more, itself extinguish traditional Aboriginal or native rights or title in or to land and waters, which, on the contrary, continue to be recognised by the common law until effectively extinguished. See Mabo v Queensland [No 2], at 52, 69; Western Australia v Commonwealth [1995] HCA 47; (1998) 183 CLR 373, 422-423. The right or duty of Mr Jones to represent his people or some of them is not shown to be related to customary Aboriginal rights in land or title to waters either at all or in any way that is recognised by the common law in Australia or in any of the other jurisdictions in which the common law has been adopted or received.

[15] The present appeal is in any event governed not by common law but by the provisions of the Succession Act 1981 and of the Uniform Civil Practice Rules. It cannot be suggested that their application in some way depends on the absence of rules to contrary or to different effect under Aboriginal customary law. That would contradict what was said by Mason CJ in Walker v New South Wales (1994) 182 CLR 45, 48, that:

"There is nothing in the recent decision in Mabo v Queensland [No 2] to support the notion that the Parliaments of the Commonwealth and New South Wales lack legislative competence to regulate or affect the rights of Aboriginal people, or the notion that the application of Commonwealth or State laws to Aboriginal people is in any way subject to their acceptance, adoption, request or consent."

Later his Honour went on to add (182 CLR 45, 49-50):

"It is a basic principle that all people should stand equal before the law ... the general rule is that an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons or matters ... And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose."

Walker v New South Wales concerned a criminal prosecution; but, for a case that did not, in which the remarks of Mason CJ were applied, I would refer to the decision of Spender J in Turrbal People v Queensland [2002] FCA 1082; (2002) 194 ALR 53.

[16] The same conclusion prevails if the question falls to be determined under s 211 or s 213 of the Native Title Act 1993 (Cth). Section 211, which is concerned with preserving certain native title rights and interests, is expressed to apply only to such rights and interests "in relation to land or waters". Section 223(1) defines "native title" and "native title rights and interests" as "communal, group or individual rights and interests of Aboriginal peoples ... in relation to land or waters ...", where (b) the Aboriginal peoples have by those laws and customs "a connection with the land or waters"; and (c) the rights and interests are recognised by the common law of Australia. The "connection" with the land or waters requires:

"first, an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a 'connection' of the peoples with the land or waters in question."

See Western Australia v Ward (2002) 76 ALJR 1098, at 1120 s64. There is nothing in the present case to link with land or water the traditional right or duty asserted by Mr Jones of representing members of the Dalungdalee people, or that constitutes a "connection" with any land or water. The suggestion, therefore, that the learned judge should have interpreted the Uniform Civil Procedure Rules in a way that would make them accord with any such traditional right is not sustainable. It follows that there is no relevant inconsistency under s 109 of the Constitution between the provisions of those Rules and the provisions of the Native Title Act 1993 (Cth).

[17] It remains to be determined whether there is inconsistency with any provisions relevant for this purpose of Part 3 (Distribution on Intestacy) of the Succession Act 1981 (Qld), or whether the Racial Discrimination Act 1975 (Cth) otherwise invalidates those provisions. Section 35(1) determines the persons entitled to take an interest in the residuary estate of an intestate, as well as the quantum of the interest to be taken, which is to be ascertained by reference to schedule 2 of the Act. Section 35(1A) defines the next of kin of an intestate as including brothers, grandparents and children of the intestate together with certain specified more remote relatives. Absent a surviving spouse, the effect of Rule 1 of Part 2 of schedule 2 is that, where the intestate is survived by issue, they are entitled to the whole of the residuary estate of the intestate. This was presumably the provision on the basis of which Elliott Bennett's estate was distributed to his four surviving children, who, as the only intestacy beneficiaries or next of kin, reached agreement with Sheila Little on 8 May 1984 to share the estate with her. It was not until 2002 that the Act was amended to insert s 5AA, which now defines "spouse" to include a de facto partner.

[18] The Succession Act 1981 commenced on 1 January 1982, so that the Racial Discrimination Act 1975 (Cth), which was in force from 31 October 1975, applied to it. Section 10(1) of that Act provides in effect that persons of a particular race or ethnic origin are, by force of that provision, to enjoy a right under a provision of State law to the same extent as persons of another race or ethnic origin notwithstanding anything to the contrary in that State law. Section 10(1) is capable of operating in one of two ways. Stated shortly, it may supplement a right created by State law by extending it to persons of a particular race, and so making it universal. Or it may operate under s 109 to invalidate a State law that restricts the right of persons of a particular race from enjoying a right enjoyed by others. See Western Australia v Ward (2002) 76 ALJR 1098, at 1129 ss 106-108.

[19] In the application of its provisions to a distribution on intestacy, Part 3 of the Succession Act makes no distinction between peoples of any race or origin. Its provisions apply equally to all people including Aborigines. If there are in fact traditional rights to inherit property special to Aboriginal people which Part 3 of the Succession Act restricts or with which it interferes, those traditional rights have not been established by evidence in this case, and s 10(1) of the Racial Discrimination Act is therefore not shown to be attracted to them.

[20] I am conscious of the fact that the designation of Aboriginal relationships such as mother, brother, sister and so on, may not necessarily be the same as those relationships in western society, which is evidently the criterion used as the basis for distribution on intestacy under the Succession Act. It is possible (I say no more) that for succession purposes relationships are capable in some circumstances of being understood in ways that are broader than would ordinarily be the case at common law: cf Bamgbose v Daniel [1954] UKPC 24; [1955] AC 107 and Coleman v Shang [1961] AC 481; but there is nothing to show it to be so here. Subject to applicable provisions of Commonwealth law, this Court is, as Kirby P said, in Mason v Tritton (1994) 34 NSWLR 572, 594:

"... bound to apply the law made by parliament or laws made under such a law. It cannot instead choose to obey an inconsistent law of Aboriginal society."

As his Honour also said there, rights under traditional or customary law are secured under the Australian legal system only to the extent that that system grants them recognition. In this instance neither the Uniform Civil Procedure Rules, nor Part 3 of the Succession Act recognises any of the traditional or customary rights or duties that Mr Jones has advanced to sustain his submissions.

[21] The application by the plaintiffs Sharon Lee Davidson, Carmel Lee Burke and John Elliott Bennett to be substituted as appellants in this appeal must be granted. The appeal must be dismissed. John Dalungdalee Jones is ordered to pay the costs of and incidental to the appeal.

[22] WILLIAMS JA: Subject to one matter, which is inconsequential to the result of the appeal, I agree with all that is said by McPherson JA in his reasons which I have had the advantage of reading.

[23] In the litigation John Dalungdalee Jones asserted that he was the senior elder of the Dalungdalee people of Fraser Island and in consequence entitled to exercise the powers conferred by customary Aboriginal law on a person holding that position. Throughout the proceeding judges have accepted that assertion for the purposes of making orders but no judicial finding has been made that in fact the appellant's assertion is justified. Further, I am not satisfied that in other litigation in which the appellant has made such an assertion there has been a finding of fact made constituting judicial recognition of the validity of the appellant's claim.

[24] This appeal can be resolved by assuming, without deciding, that there is substance in the appellant's claim that he is the senior elder of the Dalungdalee people of Fraser Island; in my view nothing said by the Court of Appeal in dismissing the appeal should be regarded as a judicial determination of the validity of his claim.

[25] I agree with the orders proposed by McPherson JA.

[26] JERRARD JA: In this appeal I have had the opportunity of reading the reasons for judgment of McPherson JA and Williams JA and respectfully agree with those reasons for judgment and orders proposed. I add only that since administration of the intestate estate was completed over 16 years ago, and since the action against the Public Trustee under s 52 of the Succession Act 1981 is based on that trustee's alleged neglect to perform its duties to collect and get in the personal estate of Elliott Bennet, including the funds held on trust for Mr Bennett by the Director of Aboriginal and Island Affairs, the order likely to be sought and made if those proceedings are successful is an order for damages. Those would be ordered in favour of the applicant parties aggrieved by the Public Trustee's prior neglect; such orders would not work an enlargement or addition to the previously administered estate. Accordingly, those orders would not result in John Dalungdalee Jones having received anything by reason of the Deed dated 23 June 2003 then purporting to transfer to him a one sixth share in the previously administered estate of the deceased.

[27] The reason damages would be the order asked for is that s 52(2) provides that if the personal representative neglects to perform his or her duties as aforesaid the court may, upon the application of any person aggrieved by such negligence, make such order as it thinks fit including an order for damages and an order requiring the personal representative to pay interest on such sums of money as have been in the personal representative's hand and the costs of the application. The absence of an express power to make an order that a personal representative pay interest on sums of money which the representative ought to have, but did not, get into the personal representative's hands makes it likely that a successful applicant for an order under s 52(2) - where interest on monies never in the representative's hands and long withheld would be the most significant benefit gained - would ask for an order for damages compensating that applicant for being so withheld.