Zeith & Ors v Public Trustee of Queensland B25/1995 [1996] HCATrans 137 (15 March 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

No B25 of 1995

B e t w e e n -

GARY DENNIS ZEITH, GREGORY CHARLES ZEITH and LYNETTE FAY BLACK

Applicants

and

THE PUBLIC TRUSTEE OF QUEENSLAND as Administrator of the Estate of VINCENT WILLIAM MONCKTON deceased

Respondent

Application for special leave to appeal

TOOHEY J

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 MARCH 1996, AT 10.03 AM

Copyright in the High Court of Australia

MR P.A. KEANE, QC: May it please the Court, I appear with MR G.T. BRITTON for the applicants. (instructed by John Williams & Associates)

MR R.S. O'REGAN, QC: If the Court pleases, I appear with my learned friend, MR A.M. WILSON, for the respondent. (instructed by G.E. Klein, the Official Solicitor to the Public Trustee)

TOOHEY J: Yes, Mr Keane.

MR KEANE: Your Honours, this case raises the question whether each of the applicants were stepchildren of the deceased at the time of his death. It was held below that the applicants were not the stepchildren of the deceased because their natural mother had died before the deceased who was until then on any view their stepfather.

The issue arises in the context of a claim under the provisions of the Succession Act relating to family maintenance whereby a stepchild may make a claim for adequate provision from the estate of a deceased person. By section 40 of the Succession Act "stepchild" is defined to mean:

a child of that person's spouse who is not a child of the deceased person.

"Spouse" in relation to a deceased person means:

the husband or wife of that person -

Thus the issue to be resolved is whether the relationship of stepchild and parent ceases on the death of the natural parent and that is, in our respectful submission, not a matter of special definition but of ordinary language.

This can be seen, in our submission, by reference to the decision of the Full Court in Re Burt (1988) 1 Qd R 23. We ask your Honours to look at that briefly, if we may. The relevant passage is in the judgment of Justice McPherson with whom the Chief Justice agreed. The relevant passage commences at page 27 at line 55 right at the bottom of the page where his Honour refers to, going over the page:

an ordinary or natural meaning of the word "stepchild", and that the relationship it connotes is ordinarily regarded as coming to an end upon termination of the marriage that gave rise to it.

Then in the next paragraph his Honour said:

The result is, in my opinion, that the definition of stepchild in s89 of the Act ought prima facie to receive a meaning consistent with its natural or ordinary meaning as connoting the child by a former marriage of the husband or wife of the testator or testatrix at the date of her death.

And might we, while we still have the case there, refer your Honours back to page 26 where in a passage from about line 41 to line 50 your Honours will see a reference to the New Webster Encyclopaedic Dictionary which gives as the meaning of the word "stepchild" at line 45:

"The child of a husband or wife by a former husband or wife".

His Honour noted:

That may be said to support the contention of the respondents on this appeal -

that is to say the contention of the present applicants -

but it differs from earlier definition in Webster's new International Dictionary -

which his Honour then cites. It is our submission that the narrow view that was taken in Re Burt is, as is indeed apparent from the comparative definitions from the dictionaries in that case, outmoded and not in conformity with modern usage.

TOOHEY J: Once you get into that area of the ordinary meaning of a term and you have a meaning which attributed to that word or that expression by the Court of Appeal which is consistent with other authority, where does the special leave point arise?

MR KEANE: Your Honour it is this, that as was recognised in Re Burt itself, the ordinary and natural meaning of the word as reflected in the New Webster dictionary is broader than that which was treated as the ordinary and natural meaning of the word in the case and we submit that the Full Court erred and that subsequent authority which has accepted that decision as authoritative has perpetuated that error. In Re Marstella the Full Court regarded itself as bound by Re Burt and that was, no doubt, because that decision was given before the decision of the High Court in Nguyen v Nguyen but in Re Marstella, Chief Justice Macrossan who delivered the leading judgment regarded the point as settled by authority but identified three bases for doubting the correctness of the position so established.

Re Marstella (1989) 1 Qd R 638, if we may take your Honours to page 641 at about line 20, your Honours will see that his Honour there refers to three decisions of the Supreme Court at first instance which support the view for which we contend; two of which, Re Trackson and Re Nielsen, were decided before the enactment of the present legislation, legislation which was in materially the same terms and thus so as to establish what might have been taken, for example, by the Parliament to be a settled view. Secondly, we note the reference at page 641, lines 29 to 32 to the dicta of Justice Deane in Reg v Cook which distinctly support our position and, thirdly - - -

KIRBY J: Where is that, I am sorry?

MR KEANE: At page 641, about line 29, your Honour?

KIRBY J: Yes, I see it.

MR KEANE: The view of Justice Deane in R v Cook; ex parte C,

that "if the marriage remains undissolved at the time of the death of the natural parent, the relationship of affinity between stepparent and stepchild will continue.

Thirdly, your Honours, over the page at 642, lines 5 to 16, his Honour accepts, in a passage, which, in our submission, is rather vivid and compelling, that is that it is an ordinary use of language to speak of a deceased spouse as one's wife or husband.

KIRBY J: Well, your special leave points are that this is a common phrase in a lot of Australian statutes; that there has been conflicting authority; that times are changing, and relationships are changing, and that this is going to be a common problem in the future; that there is a difference of view in the Supreme Court of Queensland and we should intervene for those reasons. Not just for the law in Queensland but for other States?

MR KEANE: Quite, your Honour. That is why, with respect, we have been at pains to emphasise that the question is one of the meaning of the word, not in special definition, so, with respect, we would adopt what your Honour says.

KIRBY J: The question that one asks is should this be left to Parliament to sort it out given that there are social views one way or the other?

MR KEANE: Well, your Honour, in relation to that we would submit, of course, that the Parliament, when it enacted the present dispensation, had before it the settled view which was that settled in Re Trackson and Re Nielsen which supports our view of the matter. Indeed, the language in which Parliament enacted the present dispensation speaks of a spouse in relation to a deceased person as the husband or wife of that person. A mode of language, in our respectful submission, quite consistent with what we submit is now taken to be, or should now be taken to be, the ordinary and natural meaning of the word.

As your Honour Justice Kirby has mentioned, we point out in paragraph 15 of our summary, that the relationship is now very common and, no doubt, much more common than was previously the case. Finally, your Honours, if we might say, with respect, in our summary at paragraphs 13 and 18 - we would ask your Honours to go firstly to paragraph 13 of our summary. There we identify some of the arbitrary and, we would submit, unjust consequences of the narrow view and of its perpetuation and at page 18 - - -

KIRBY J: There is a basis, is there not, if the child is a young child that they can claim under another footing in the Act? Is that not correct?

MR KEANE: Yes, that is true, your Honour. They can claim under the broader definition of "dependant". That is true, but that does not remove the problem. In paragraph 15 your Honours will have seen that of the 200,000 families in the community involving step-relationships, only 15 per cent involve non-dependant children.

KIRBY J: Yes.

MR KEANE: Or do not involve dependant children, but dependency ceases at 18 as a general proposition. In paragraph 18, your Honours, we identify some inconvenience in relation to the administration of justice which we submit tends to show that the narrower approach in Re Burt is wrong and should be corrected. It is inappropriate, so far as the administration of justice is concerned, in our respectful submission, that the kind of defensive or protectives measure that we identify in paragraph 18 as being promoted by the result in Re Marstella should occur as a matter of the administration of justice. Unless your Honours have some further matter to raise with us, those will be our submissions.

TOOHEY J: Mr O'Regan?

MR O'REGAN: Thank you, your Honours. Your Honours, we submit that there is no special leave point. The general question of law formulated by our friends does not, in our submission, arise. It is merely a short point of construction. The construction of sections 40 and 41 of the Queensland Succession Act and section 40 contains its own definition of the term "stepchild" and so the inquiry, we submit, should be limited to that specific point of construction.

We acknowledge that as a matter of common usage it might well be said that the applicants in this case could be described as stepchildren but the fact is that the Court of Appeal had to decide a much narrower question, that is, whether each was a stepchild within the meaning of section 40, therefore a child within the meaning of that same section and, therefore, qualified to apply under section 41. We submit that as a matter of statutory construction the court below correctly came to the conclusion that none of the applicants was, indeed, a child.

The distinctive feature about section 41, your Honours, is that it confers an entitlement to apply only to persons who stand in specified relationships to the deceased, either as spouse, a child, or dependant. At the time, we submit that no applicant was a child of the deceased within the meaning of that term because no applicant was then a stepchild. As their mother had already died, it cannot be said that any applicant was, in relation to the deceased person, a child of that person's spouse.

TOOHEY J: But does that not really beg the question?

MR O'REGAN: No, we submit it does not, your Honour, for the reason that sections 40 and 41 relate to a state of affairs which is existent at the time of the death of the deceased and although, for instance, section 41 begins with a conditional rather than a temporal clause. If any person dies, we submit that it really relates to a state of affairs at time of death and we submit that that is confirmed by the terms of section 40 where the term "dependant" is defined in terms of relationship at the time of the person's death and so too, are the expressions "spouse" and "stepchild". Furthermore, the court in concluding, as it did, that the applicants were excluded from the ambit of section 41, followed a settled line of authority and those cases are set out in our outline at paragraph 5 - - -

TOOHEY J: When you say it is a settled line of authority, Mr O'Regan, what do you say about those earlier decisions to which Mr Keane referred, Trackson and others?

MR O'REGAN: Our submission, your Honour, is that those decisions, Re Neilsen and Re Trackson, were wrong and they were overruled and, indeed, the legislature in 1981, when it repealed the old TFM legislation and substituted the Succession Act of that year, ameliorated the position by including, as one of the qualified category of persons to apply, dependants, as Justice Kirby indicated before. So, that is in many deserving cases where a person who might in ordinary parlance be described as a stepchild, would not qualify. As a matter of definition that person could be subsumed into the category of dependant.

So the particular need that existed at the time of the old legislation to adopt a liberal construction of the term "stepchild" no longer arises, or at least it does not arise with the same acuteness. We submit further that the fact that the legislation is remedial is really no justification for artificially extending its meaning in this case and it would be an artificial extension to go beyond the terms of the definition of "stepchild" in section 40.

Our learned friends have referred to the use of the term "stepchild" in other statutory contexts. We submit that the use of the word there is not relevant to the question which was before the court below in this case. The use of the word there does not make the precise question of construction here one of general importance. Furthermore, it is significant, in our submission, that although as our learned friend, Mr Keane, noted, the Chief Justice in Marstella's Case in 1988 referred to what he perceived to be deficiencies in the drafting of the legislation. The legislature has not since chosen to amend these provisions and, in our submission, if there is any existent anomaly, it is one to be removed by legislative action, not by adopting what we submit would be an impermissibly extensive construction of the word "stepchild".

KIRBY J: This is really rather a short point. It is a very small point, very important to the parties in this case and there has been conflicting authority in Queensland in the past. Is it the sort of matter which could be dealt with entirely on written submission, supplemented by what you and Mr Keane have said today?

MR O'REGAN: In our submission, it could be, your Honour, yes. It is a very short point.

KIRBY J: We are taking quite a lot of time on this in this application, but it is really a very short point and it is partly one of impression looking at the authorities, looking at the statute.

MR O'REGAN: Indeed, your Honour. The only other submission we wish to make, your Honour, is to observe that a single judge of the Tasmanian Supreme Court in the case of Basterfield v Gay & Ors (1994) has chosen to follow the Queensland authorities. So there is a substantial body of - - -

KIRBY J: Was that by persuasion, or out of a sense of obligation to follow a Full Court of another State?

MR O'REGAN: No, there is nothing in his Honour's judgment which indicates that he was responding to a sense of obligation, rather it was the logic of the reasoning in those Queensland cases which persuaded him to that view.

TOOHEY J: Thank you, Mr O'Regan. I am sorry, you had finished?

MR O'REGAN: Yes, I have, your Honour.

TOOHEY J: Mr Keane.

MR KEANE: Your Honours, one point. In relation to the breadth of the ramifications of the issue, we would simply mention that when one looks at the relevant statutory language, and the decisions which are addressed, one sees no indication that the Court has acted upon, in any case, some extended view of what is meant by "stepchild" and "stepparent", rather than giving effect to what is, or what ought to be, regarded as the ordinary and natural meaning of that word when used in a statute of general application. That all I wish to say in reply, your Honour.

TOOHEY J: Yes, thank you. What I am about to say represents the view of the majority of the Court. This application concerns the meaning of stepchild in the Succession Act (Queensland) 1981. The decision of the Court of Appeal that on the death of the natural parent the relationship no longer exists accords with recent decisions of that Court and, furthermore, as a matter of construction it is a conclusion which is reasonably open. In those circumstances, the application for special leave to appeal is refused.

MR O'REGAN: Your Honours, the respondents seeks the cost of the application.

TOOHEY J: Any reason why costs should not be awarded, Mr Keane?

MR KEANE: No, your Honours.

TOOHEY J: An application for special leave is refused, with costs.

AT 10.27AM THE MATTER WAS CONCLUDED