Editors --- "Jones v Public Trustee (Qld) - Case Summary" [2005] AUIndigLawRpr 4; (2005) 9(1) Australian Indigenous Law Reporter 31

• Jones V Public Trustee (Qld)
• Facts:
• Held, Granting The Plaintiffs’ Application, Dismissing The Appeal And Ordering Jones To Pay Costs:

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Court and Tribunal Decisions - Australia

Jones v Public Trustee (QLD)

Supreme Court of Queensland Court of Appeal

(McPherson, Williams and Jerrard JJA)

August 6, 2004

[2004] QCA 269; 209 ALR 106

Aboriginal and Torres Strait Islanders — customary law — appellant claimed the right, based on Aboriginal customary law, to represent beneficiaries of deceased estate, without their authority — whether Court orders incorrect because they did not take account of Aboriginal customary law — whether Aboriginal customary law prevails over relevant legislation

Succession law — standing — where appellant not a beneficiary in intestacy but three out of four beneficiaries executed a deed purporting to assign to him a one sixth share of an administered deceased estate — whether appellant a ‘person aggrieved’

Facts:

Elliott Bennett (the ‘deceased’) became the bantam weight boxing campion in 1948. During the course of his career the deceased won large sums of money which were controlled by the Director of Native Affairs, and later the Director of Aboriginal and Island Affairs. The deceased died intestate in 1981. In 1982 the Public Trustee was authorised to administer his estate between the intestacy beneficiaries. In 1984 the intestacy beneficiaries executed a deed of compromise and the estate was divided between them in equal shares.

After the administration of the estate was completed in 1988, the senior elder of the Dalungdalee people, John Dalungdalee Jones, made inquiries into the deceased’s affairs and formed the opinion that some of the prize monies were unaccounted for by the Public Trustee. In the interests of the intestacy beneficiaries, and as an aspect of his duty as senior elder, Jones initiated proceedings to recover the monies.

After the initial proceedings, Jones and two of the intestacy beneficiaries entered into a deed to assign Jones a one sixth share of the estate of the deceased. This deed was entered into by Jones for the purpose of obtaining the necessary standing to pursue the primary application in the proceeding, being orders against the Public Trustee.

On 9 February 2004, White J refused Jones’ application to set the matter down for trial and ordered that the intestacy beneficiaries be substituted as plaintiffs in the proceedings. If there was no substitution, the claim was to be struck out with no leave to re-plead. Furthermore, White J ordered Jones to pay the defendant’s costs incidental to the several applications and hearings.

Jones appealed these orders and pursued the application as plaintiff to have the matter set down for trial. On 7 April 2004 three intestacy beneficiaries were substituted as plaintiffs in the proceeding. None of them wished to be represented by Jones and they requested that he discontinue the appeal.

Held, granting the plaintiffs’ application, dismissing the appeal and ordering Jones to pay costs:

1. Jones was not a ‘person aggrieved’ within the meaning of s 52(2) of the Succession Act 1981 (Qld): [10].

2. Rule 75(1) of the Uniform Civil Procedure Rules (Qld), providing for proceedings in ‘representative’ form, were no longer available or appropriate. Any power Jones may have had to act in this capacity was terminated by the decision of the intestacy beneficiaries: [11].

3. Even if it were acknowledged that Jones had a customary law duty and right to represent members of his people, and even if this duty and right were also conceded to extend to proceedings in a court of law, intestacy beneficiaries still have the authority to decide whether or not they wish to be represented by him: [13].

4. Before a traditional law or custom can be successfully relied on, it must satisfy a number of requirements. One of these requirements is that the right claimed is sought to be relied on in the exercise of traditional Aboriginal laws and customs: Mason v Tritton (1994) 34 NSWLR 572. Jones’ claim must therefore fail, because there was no evidence that there was or is a continuing custom that the eldest member of the Dalungdalee people is entitled to insist on representing individuals without their consent: [13].

5. The right or duty of Jones to represent his people is not shown to be related to customary Aboriginal rights in land or title to waters in any way that is recognised by the common law in Australia: [14]. Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 discussed.

6. The appeal was governed by the Succession Act 1981 (Qld) and the Uniform Civil Practice Rules and not the common law. The application of these statutory provisions is not dependant on the absence of rules to the contrary or to different effect under Aboriginal customary law: [15]. Walker v New South Wales [1994] HCA 64; (1994) 182 CLR 45; Turrbal People v Queensland (2002) 194 ALR 53 affirmed.

7. There is no inconsistency under s 109 of the Constitution between the relevant rules of the Uniform Civil Procedure Rules (Qld) and the Native Title Act 1993 (Cth), as there is nothing to link land or waters with the traditional right or duty asserted by Jones to represent members of the Dalungdalee people: [16]. Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 applied.

8. The Succession Act 1981 (Qld) pt 3 makes no distinction between peoples of any race or origin in the application of its provisions to a distribution on intestacy. If there are traditional rights to inherit property special to the Dalungdalee people which pt 3 restricts or interferes with, those traditional rights have not been established by the evidence and s 10(1) of the Racial Discrimination Act 1975 (Cth) does not, therefore, apply: [19].