Wolff v Deavin

Judgment 1This is the hearing of the defendant's notice of motion seeking that the proceedings be dismissed pursuant to the Uniform Civil Procedure Rules 13.4. 2The proceedings are a claim pursuant to the Succession Act 2006 for provision out of the Estate of the Late Joseph Patrick Morris, who died on 30 July 2011. The basis that the plaintiff put forward to make her an eligible person and thus able to make a claim on the estate of the deceased was that she was wholly or partly dependant upon the deceased and a member of the household of which the deceased person was a member. 3For the purpose of this motion the defendant accepts that there is evidence that the plaintiff was wholly or partly dependant on the deceased. That focuses the argument on the second requirement, namely whether she was a member of the household of which the deceased was a member. 4The defendant put forward two reasons for the summary dismissal of the proceedings. The first relates to a change in the legislation following the enactment of the Succession Act 2006, which is said to change the requirement so that a person can only be a member of a single household at any particular time. This is in contrast to authority pursuant to the Family Provision Act 1982, which indicates that it is possible to be a member of two households. The second basis is that the evidence demonstrates that the plaintiff was never a member of the same household of the deceased and that her evidence only established that the deceased stayed at her apartment some nights and that they took holidays together. 5The parties are at issue as to whether it is appropriate in the circumstances of this case to deal with the matter by way of summary judgment. I will return to this in due course. 6It is useful in order to deal with both arguments to see what is said by the plaintiff in her affidavit about the nature of the relationship between her and the deceased. The plaintiff apparently met the deceased in 1981 and formed an intimate and sexual relationship. At that stage, she was 27 years of age and the deceased was 35 years of age. Throughout the period of the plaintiff and deceased's relationship, the deceased maintained a relationship with another woman, Jan. Jan in 1983 gave birth to the deceased's daughter and later became his wife. 7The deceased lived initially in Paddington before moving to Rose Bay and then to Bronte. The deceased lived with Jan and his child at Rose Bay and Bronte. There is some evidence from the plaintiff that on several occasions, she stayed at his house when Jan was away. 8According to the plaintiff, in late 1997 her relationship intensified with the deceased and from1998 they would fly to Port Douglas several times each year and stay there for two weeks at a time. 9The plaintiff normally lived in rented apartments until the company of the deceased purchased a unit, which was made available to the plaintiff. 10At certain times during the relationship, the deceased stayed at the plaintiff's apartment for a couple or more nights a week. He had a key to her apartment and kept some clothes there. 11During 2004, the plaintiff and the deceased continued their regular trips to Queensland and the deceased, according to the plaintiff, still lived weekends and several days each week at her home. The relationship fell apart in 2004 and the plaintiff left the deceased. 12I turn to the first argument. The decision to be made by the Court on the eligibility of the plaintiff of course is a factual decision and is not part of the discretionary exercise of jurisdiction under the Succession Act. 13Pursuant to the Family Provision Act 1982, the relevant definition of eligible person is as follows: "(d) a person: (i) who was, at any particular time, wholly or partly dependent upon the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member." 14Pursuant to the Succession Act 2006, the relevant section is s 57(1)(e) and the terms of that section is as follows: (e) a person: (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, 15The difference, which was adverted to in argument, is that in the Family Provision Act the plaintiff had to be a member of "a" household. Under the Succession Act, the plaintiff had to be a member of "the" household. 16In order to understand the matter it is useful to see what is said by Young J as he then was in Markulin v Drew (NSWSC, 12 August 1992, unreported). "In Munro v Lake - 8 February 1991, unreported, McLelland J considered whether a stepdaughter who had regularly visited the deceased's home and stayed from Friday to Sunday night with her mother, the deceased's wife, was a member of the deceased's household. His Honour, after referring to my decision in Benny v Jones and Kingsland v Mclndoe [1989] VR 273 said: "The concept of membership of a household ... connotes a degree of continuity and permanency of mutual living arrangements ...". He considered that apparent regularity of weekend visits would not be sufficient to make a person a member of a household. In Wagstaff v Wagstaff a decision which Windeyer J gave when a Master on 6 November 1991, his Honour had to deal with situation where the applicant, Nancy, was a former workmate of the deceased who had borne him a child. The deceased was still living with his legal wife at the relevant time. However, for some time the deceased would visit Nancy twice each day during the week for breakfast and in the evening and would also see his child. He also visited every Saturday and Sunday, but only on one occasion did Nancy, the deceased and the child go away together for a weekend. Nancy gave evidence that on his visits the deceased would change out of his suit into casual clothes, play with his daughter and then change back into his suit to go home. Windeyer J said that there was no doubt at all that the principal household of the deceased was with his wife, but then said: "The question is whether or not he was also a member of the household of [Nancy]... I accept that it may be possible in special circumstances to be a member of more than one household at the same time. Mr Green probably managed that; see Green v Green (1989) 17 NSWLR 343. But the ordinary meaning of being a member of a household requires the member to live in that household. A child living at home with the family is a member of both family and household but upon moving out to live elsewhere remains a member of the family but not of the household. Regular visiting, when this is not accompanied by regular overnight stay, is not sufficient.... It follows that the plaintiff is not an eligible person and her claim should be dismissed with costs." Windeyer J's statement that it is possible to be a member of two households must, in my view, be completely correct. It is not at all uncommon in this day and age that a child of a broken marriage will stay with his or her father from Friday night to Monday morning because the mother works weekends, and will live with his or her mother from Monday through to Friday because the father works weekdays. The child may very well have clothes and toys and books at both the mother's home and the father's home. The child would clearly be in two households. Likewise the Mr Green to whom Mr Justice Windeyer referred who had a legal wife and two de facto wives whom he kept in ignorance of each other's existence and managed to spend roughly two days a week with each, may well have been involved in three households in all of which he may have been the householder. Accordingly, I accept that it is possible for Mr Ackerman to have been a member of the Markulin household ever though he may also have been a member of the Legge household or he was a member of a household involving his suite at the Airport Hilton Hotel. If, however, the American cases are correct that it needs more than one person to constitute a household, there was no household involved with the deceased's suite at the Airport Hilton Hotel. It is not necessary to go into that matter further. The only other decision that I think I need refer to is the decision of the Court of Appeal in Light v Anderson (1992) DFC 95 to 120.I have already set out its facts. The Court of Appeal never appeared to consider whether the plaintiff was a member of the household, presumably it was common ground that such a housekeeper was a member of the household. If she were not a member of the household it is hard to see how the Court could possibly have made an order. It seems to me that what is to be learnt from the cases, particularly the Court of Appeal decisions in Benny v Jones and Light v Anderson is that one can be a member of a household for the purpose of the Family Provision Act provided that there is in fact a household and that the plaintiff has some intimate connection with the householder or another member of the household even though the plaintiff does not fall into the category of a quasi wife or quasi child. Thus, a fellow bird watcher who lived in the house and shared expenses with the deceased was a member of the same household as was a live in housekeeper who was paid a moderate wage, went away on trips with the deceased and had sex with him on more than a casual basis could be a member of the household even though she was in no way a de facto wife. It was important that she was not a mere housekeeper or employee either. When I use the words "intimate connection" I do not limit that to persons with whom there is a sexual relationship. The bond between them, however, must be quasi familial or that of friendship rather than that of landlord and boarder or master and servant. However, there is nothing to stop a person who enters a house as a servant ending up as an intimate friend." 17In the light of the case law referred to by his Honour in his Honour's views, it is plain that one can be a member of two households. The submission of the defendant is that the use of the definite article "the" rather then the indefinite article "a" in the former legislation has the effect that as a matter of statutory construction under the current legislation a person can only be a member of a single household at any particular time. 18The defendant referred to the general principle of statutory interpretation that where an expression in an Act has been amended that would indicate an intention on the part of the legislature that the latter expression should bear a different meaning or scope from the earlier expression. He referred to Amalgamated Wireless (A/SIA) Ltd v Philpott [1961] [110 CLR 617 at 624 and Tam Anh Bui v The Minister for Immigration and Multicultural Affairs [1998] FCA 353. 19The plaintiff submitted that the change in the Act made no difference and in particular referred me to the second reading speech of the Attorney-General on the introduction of the Succession Amendment (Family) Provision) Act 2008. In that speech he said the following: "The bill, therefore, does not adopt the model bill eligibility provisions. It retains the approach taken in the current Act with one modification: the current Act provides that those living in a domestic relationship with the deceased are automatically entitled to eligibility. The model bills restriction of this entitlement to de facto partners is sensible and thus the bill replaces "domestic relationship" with "de facto relationship" and creates a new category of "applicant": a person in a close personal relationship with the deceased. This applicant has to meet the same requirements imposed on former spouses and other dependents before being entitled to have the application considered by the court." 20There is of course no reference to the subtle change relied upon by the defendant. It is noted that the 2009 report by the New South Wales Law Reform Commission, Report 124 Uniform succession laws: Administration of estates of deceased persons also does not discuss the eligibility provisions of the Succession Act. 21In response to this, the defendants referred me to what was said by Spigelman CJ in Harrison v Melhem [2008] NSWCA 67 in these terms: "12I wish to express my agreement with the analysis by Mason P of the House of Lords judgment in Pepper v Hart [1993] AC 593. Statements of intention as to the meaning of words by ministers in a Second Reading Speech, let alone other statements in parliamentary speeches are virtually never useful. Relevantly, in my opinion, they are rarely, if ever, "capable of assisting in the ascertainment of the meaning of the provisions" within s 34(1) of the Interpretation Act 1987. I only refrain from using the word "never" to allow for a truly exceptional case, which I am not at present able to envisage. 13Of course, other statements in the course of a Second Reading Speech by a minister, bearing in mind the fact that s/he will almost always be speaking on behalf of, at least, the Lower House of Parliament by reason of the operation of our party system, will be of use on matters such as the purpose, which used to be referred to as mischief. 14However, the subjective intention of the Parliament, let alone of Ministers or Parliamentarians, is not relevant. What is involved is the search for an objective intention of Parliament, not the subjective intention of Ministers or Parliamentarians. (See, for example, Eastman v The Queen (2000) 203 CLR 1 at 146-147 per McHugh J.) Indeed, often there is no relevant subjective intention at all. The words used may represent a compromise, without consensus, so that, in substance, the decision has been left to the courts. (See Brennan v Comcare (1994) 50 FCR 555 at 572-575; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-169.) Even more frequently, indeed almost always in cases of difficulty, the circumstances in which the statute falls to be applied were not actually contemplated by anybody. Even if they were contemplated, a statement of intention in a Ministerial Second Reading Speech will not prevail over the words of the statute. (Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; R v Young (1999) 46 NSWLR 681 esp at 690 [33]-[37].) 15The authoritative determination of the meaning of a statutory provision is an exercise of the judicial power, not of the legislative power, let alone of the executive power. In the Australian system of the separation of powers, it is the courts which determine what the legislative intention when enacting a particular provision was. 16The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. (See State v Zuma [1995] (2) SA 642; Matadeen v Pointu [1999] 1 AC 98 at 108; R v PLV (2001) 51 NSWLR 736 at 743 [82]; La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius (Privy Council, 13 December 1995, unreported); Pinder v The Queen [2003] 1 AC 620.) The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say. (See Nolan v Clifford (1904) 1 CLR 429 at 449; Re Bolton; Ex parte Beane (at 518); Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; Wik Peoples v Queensland (at 168-169); Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 at 6 [10] and see the authorities discussed in R v Young (at 686 [5]).)" 22Accordingly, I do not think that the matter has been enlightened by the speech of the Attorney-General and move to consider whether I should accept the defendant's argument. 23The defendant submitted that the use of the definite article "the" rather than the indefinite article "a" in s 57(1)(e) has the effect that, as a matter of statutory construction, under the current legislation a person can only be a member of a single household at any particular time. In addition, the defendant submitted that the subsection also required that a plaintiff be a member of the same household as the deceased's "normal" or "usual" or "principle" household. These two submissions seem to be inconsistent. The second submission impliedly suggests that there may be more than one household. 24The plaintiff submitted that at the time, or times, when the plaintiff resided with the deceased, she was a member of the household of which the deceased was a member and that they resided together not casually but as a household. This was the case whether or not the deceased had other households then or at different times. 25In Tinbar Pty Ltd v W T & M E Peterie Pty Ltd (in liq) & Anor (1982) 7 ACLR 111, Mahoney JA said, in respect of the use of the word "the", at 114-115: "Mr Heydon's argument ran as follows: the ordinary meaning of 'the book debts of a company' is 'all of the book debts of a company'; this ordinary meaning may be departed from if the context indicates that it should; but in the present subsection there is no such indication; and, in any event, there are reasons why the ordinary meaning should be adhered to. Mr Heydon's argument is essentially an argument as to the meaning of the language used in s 100(3)(h) and to do justice to the careful manner in which he presented it, I shall deal with it upon that basis. In my opinion, it is not correct to say that, in the present provision, the ordinary meaning of 'the book debts of a company' is 'all of the book debts of a company'. Mr Heydon based his submission in this regard upon "the" but, in my opinion, his submission does less than full justice to the various functions which that word may perform. 'The' may, in a particular context, import "all of the", but this is not its only or, I think, its primary function. 'The' is a word capable of a number of different functions. It may be used to import a word such as 'only': thus, in Coast Brick & Tile Works Ltd v Raichand [1967] 1 AC 192 at p 203, the words 'the security for repayment of the loan' were seen as capable of meaning 'the only security', although, in the event, they were read as 'any' security. It may import the concept of 'the whole': thus, in Inland Revenue Commissioners v Bates [1968] AC 483 at 505, 514, 518, the words 'if the income of the body corporate' were seen as capable of meaning either the whole of the income or some only of the income. In Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 at 656-8, 'for the reason' was seen as capable of denoting 'the sole reason' or, as in the particular case, 'the substantial or proximate reason'. And 'the' may have the function of denoting a thing or place which has previously been identified: thus in Pascoe v Nicholson [1981] 1 WLR 1061 Lord Roskill saw 'the police station', according to its ordinary meaning as being capable of denoting one particular police station rather than another, but thought that the context indicated a contrary meaning. And 'the' also has the function, and perhaps this is its primary function, of the definite article. When so used, its purpose is no more than that of the definite, as contrasted with the indefinite, article. In my opinion, it is this last-mentioned function which 'the' performs in s 100(3)(h). When 'the' has the function merely of the definite article, what it does is simply to indicate a particular thing or class of thing: it is so used in phrases such as 'the house of the company' or 'the property of the company'. Where it is seen to be so used, then (subject to the matter to which I shall refer) the difficulties of interpretation to which Mr Heydon has referred do not arise. In such a case, it may properly be said that there is 'a charge on the house of the company' or 'a charge on the property of the company' although the charge is limited to part only of that house or property. The matter to which I have referred is this. In the present provision, that to which the definite article relates is plural, ie, 'the book debts'. Where 'the' relates to something stated in the plural, it is more easily seen as performing a function other than that of the definite article. It is in this, I think, that Mr Heydon's argument, considered as an argument as to the meaning of words, ultimately lies. There is no doubt that the use of the plural may indicate that 'the' has, in the particular case, the kind of meaning here contended for. But I do not think that it necessarily has such a meaning and in the present case, I do not think that it does so. As I have said, 'the', as the definite article, may be used to indicate a particular thing or a particular class of things: in the present provision, it was, in my opinion, used to indicate book debts as a class of thing. Where there is a general term, eg, property or house property, which may be used rather than a word plural in form, the fact that 'the' is so used will be clear, as seen from the examples I have taken. But a general term for the class of book debts does not readily come to mind and therefore, where the same meaning is intended, the use of the plural as in the present provision is understandable. This view of the construction of the provision accords, in my opinion, to the intention to be drawn from its context. Mr Heydon was, in argument, unable to advance any acceptable reason why the legislature should require registration of a charge affecting all of the book debts of a company but not one which affected 95 per cent of them. I think the words used are capable of bearing, as one of their ordinary meanings, a meaning which would require registration of a charge affecting less than each of them and that meaning will, in my opinion, give effect to the legislative intention." 26In addition, Glass JA at 114 concluded his judgment in this way: "The introduction of the phrase 'the book debts' in place of the phrase which existed in the New South Wales Act prior to 1961 namely 'book debts' cannot, in my opinion, found an argument that the restricted meaning was intended. The proper conclusion to be drawn from the change, in my view, is that the draftsman being aware of the foregoing considerations perceived that no alteration of meaning would be occasioned by the addition of the definite article." 27This is consistent with s 8(b) of the Interpretation Act 1987 which provides "a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form" (DPP v Starr [2012] NSWSC 315 at [46]). 28The change has to be seen in the light of the court's interpretation of the previous provision, namely that a person can be a member of more than one household. To use the example of Mr Green, he may well have been a member of three households and if asked, may have professed an opinion on which was his principal household. That, however, was never the concern of the court as it was not a necessary requirement. One would have thought if the legislature now intended that to be the case, it would have inserted either "normal" or "usual" or "principal" into the section. 29The example given by Young J in Markulin v Drew of the child of separated parents who spends set times with each parent and, in the factual circumstance, is a member of each household is a common example. However, their claims under the Act do not depend upon being a member of the household but upon their relationship to the deceased. 30The other thing to note is that membership of the household is one of the two cumulative requirements of the section. The careful drafting of the section makes it clear that dependency does not have to be at the same time as membership of the household. Thus one can have a young adult earning a good wage, paying board to the deceased while he lived there for a few years and thus part of the household but not then dependent. Later in life, he falls on hard times, does not return to the household but is dependent on the deceased for financial assistance in his difficulties. It is the combination of these two factors which makes him an eligible person. In this sense, the membership of the household is an ambulatory provision. It is to be remembered that "household" is not statutorily defined and has a common law meaning which has been determined by the caselaw to which I have referred. 31In the case where the deceased was a member of two households and the applicant was a member of only one of them, in the expression "a member of the household of which the deceased person was a member" the use of the word "the" may be no more than the indication of a class of thing. 32In my view this is the preferable construction and accommodates the existing interpretation adopted by the courts. It would be surprising if the legislature was intending to only give relief where a testator maintained only one household, leaving testators who were in fact members of two households outside the provisions of the legislation. 33I reject the defendant's submissions on this point. 34When one turns to the factual question, I note that the actual words used in the affidavit such as New South Head Road continuing to be the deceased's "other home" are not determinative of the matter, but what is determinative are the facts concerning the deceased's connection with the home, which was normally occupied by the plaintiff. The facts which I have set out above are somewhat sparse and, on the information which is presently contained in the plaintiff's affidavit, I would have not thought that the plaintiff would be part of the household of which the deceased was a member. The trips away and holidays are not determinative, although they would play a part of discretionary considerations if the court found that the plaintiff was an eligible person. 35It remains to be considered whether in fact this is a suitable case in which to exercise summary jurisdiction to dismiss the proceedings. In Warren v McKnight [1996] NSWSC 419; [1996] 40 NSWLR 390, his Honour Justice Hodgson considered in detail whether or not the summary dismissal proceeding is available in claims in the Family Provision Act 1982 and his conclusion was in these terms: "I do not think the Family Provision Act 1982 should be read as precluding the application of the summary judgment provisions. It does operate in a context where the Supreme Court Act 1970 and Supreme Court Rules provide for ways in which disputes can be determined, and one of those ways is by summary judgment applications. I do not think that one can get from the Family Provision Act 1982 an intention to preclude the application of that rule." 36The plaintiff also referred to what was said by Master Allen in Hospital Contribution Fund v Hunt (1982) 44 ALR 365 at 373-4. At 373-4, Master Allen indicated that a court should be astute not to stifle the development of the law in respect to arguable points that are still developing. 37A matter to note at this stage is that the proceedings have just commenced with only the plaintiff's principal affidavit filed. There is also no discovery or access to the executor's records. 38I agree that the power must be exercised with caution and given the early stage of the proceedings the ultimate outcome of the matter, if it were to go to trial, cannot be reliably predicted. I would therefore not summarily dismiss the proceedings. 39I dismiss the motion filed on 4 September 2012 with costs. 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