Gundy v Joslin Eatts (As Administratrix of the Estate of the late Doreen ('Dolly') Mary-Ann Eatts, Deceased, Late of Winton, Queensland [2015] HCATrans 275 (16 October 2015)

Last Updated: 22 October 2015

[2015] HCATrans 275

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B54 of 2014

B e t w e e n -

BRADLEY GUNDY

Applicant

and

JOSLIN EATTS (AS ADMINISTRATRIX OF THE ESTATE OF THE LATE DOREEN (‘DOLLY’) MARY-ANN EATTS, DECEASED, LATE OF WINTON, QUEENSLAND)

Respondent

Application for special leave to appeal

KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 16 OCTOBER 2015, AT 11.55 AM

Copyright in the High Court of Australia

MR P.W. BATES: Your Honours, I appear with my friend, MS A.B. DOUGLAS-BAKER, for the applicants. (instructed by Gerard Malouf & Partners)

MR K.C. FLEMING, QC: If your Honours please, I appear with MR A.J. MOON for the respondent. (instructed by Roberts Nehmer McKee)

KIEFEL J: Yes, Mr Bates.

MR BATES: Your Honour, the main special leave question in this case is whether a relationship of mother and son under Aboriginal traditional practice and custom is a relationship that falls within the category of relationships in Part 4 of the Succession Act 1981 (Qld), namely whether or not the son, in terms of Aboriginal tradition, can bring a claim for provision over his mother’s estate in circumstances where this applicant was the son, in Aboriginal terms, of the deceased, but biologically they were a nephew and an aunt.

KIEFEL J: Section 41(1) makes provision for proper maintenance and support of the child or dependant. Is that right?

MR BATES: Yes, your Honour, it is most convenient if I can perhaps take you to the legislation book that we gave to your Honours and if I could ask you - which is divided into tabs, and if your Honours go to tab 1, the pages are numbered in the right-hand corner. If I could take your Honours initially to page 9 of tab 1 and the key section is halfway down that page and talks about, amongst other categories, a deceased person’s child and so talks about the - - -

KIEFEL J: Do I take it, though, that the applicant was not a dependant of the deceased?

MR BATES: Not in terms of - he was not a dependant at the time of the death which was a requirement of the Queensland legislation.

KIEFEL J: I see.

MR BATES: It is broader in some other States but - - -

KIEFEL J: Yes.

MR BATES: So he has to bring himself within the child category to make himself eligible. Now, your Honours will notice that it talks there about the “deceased person’s” child and if one goes back to the previous page of this bundle, page 8, section 40 defines “child” in this part, that is Part 4, to mean - and these words are important:

in relation to a deceased person –

That becomes important shortly as well –

any child, stepchild or adopted child of that person.

Looking at the actual words, it is a relationship between the child and the deceased - - -

KIEFEL J: Yes, but it identifies three distinct categories.

MR BATES: Correct, exactly, your Honour. There are two specific categories, a stepchild and adopted child. “Stepchild”, in fact, is defined at the top of the next page and the applicant does not fall in that category and “adopted child” is defined in western terms earlier in the Act, at page 5 of the bundle, in section 5, in terms of a western adoption so one has then this residual category left of a child meaning a child.

Now, we accept that the sort of common law was that the category of any child was a relationship of biological descendancy in the first generation connected by blood. We do not dispute the cases on that aspect which were dealt with by Justice Fraser in giving the main judgment. If your Honours go to the application book at page 27 we accept that, at paragraph [18] starting at line 30, the common law case, Popple’s Case in 1998, which also picks up on the earlier New South Wales decision, we accept that at common law, any child was a biologically connected child by blood of the first generation, which of course would exclude this applicant because he was a nephew, biologically.

So, what we say, and this is really the heart of this application, is that amendments were made in 1992 and in 1993 to the Acts Interpretation Act which we say, on behalf of the applicant, have flowed across and expanded this category of any child to add an additional concept of descendancy in terms of Aboriginal tradition.

Now, your Honours, to try and make good that proposition, which was accepted as being arguable by the primary judge but was rejected by the Court of Appeal, if I could take your Honours back to the legislation bundle at tab 2 and that sets out what, in our case, is a very important Act, the Legislative Standards Act 1992 and if I could ask your Honours to go in the bundle to page 17 with the long title. It is an Act relating to the standards of legislation, as one important area, and to the drafting of legislation and for other purposes. If your Honours then go in the bundle to page 19 in section 3, the purposes of the Act are to ensure that:

(a) Queensland legislation is of the highest standard -

It also sets out subsidiary purposes as well and in subsection (2) it says:

The purposes are primarily -

but I emphasise not exclusively –

to be achieved by establishing the Office of the Queensland Parliamentary Counsel –

Then it defines, and this is very important to the applicant’s case, a concept of “fundamental legislative principles” in section 4, being:

principles relating to legislation that underlie a parliamentary democracy based on the rule of law.

(2) The principles include requiring –

This word “requiring” is important to applicants - that is, requiring, not just permitting, but requiring:

that legislation has sufficient regard to –

amongst other things –

(a) rights and liberties of individuals -

which is then expanded by some examples in subsection (3) - - -

KIEFEL J: Well, you seek to rely upon this to construe the Succession Act, do you not?

MR BATES: Yes, your Honour.

KIEFEL J: Is not the Legislative Standards Act directed to what legislation ought to encompass - - -

MR BATES: Well, your Honour - - -

KIEFEL J: It is aspirational, is it not?

MR BATES: Your Honour, I accept that that was the construction placed on it by Justice Fraser particularly and, your Honour, really, what I have to say will come out very shortly to try and displace what your Honour has just put to me. But, your Honour, the example - - -

GORDON J: You rely on subparagraph (j), do you not?

MR BATES: We rely on (j), the next page, so:

has sufficient regard to Aboriginal tradition –

Now, your Honours, I accept then, if your Honours then go to, and this is now coming back to what your Honour Justice Kiefel put to me, one goes to the next page of the bundle, 21, Part 3 then does set out the role of the Parliamentary Counsel and, your Honour, if the Act finished, so to speak, at Part 3, I would have no quarrel with the contention your Honours put to me by way of questions from the Bench.

But, what is important, your Honours, and this is really where we say the Court of Appeal’s construction was wrong, is that at page 28 of the bundle in Part 5, there was a sort of completely independent amendment to provisions of the Acts Interpretation Act which, as your Honours will see, in section 36 then added a series of defined terms which are set out at page 29 of the bundle - - -

KIEFEL J: It is an interesting concept that the Legislative Standards Act is addressed to high standards and it manages to amend an Acts Interpretation Act in the course of speaking about something else.

MR BATES: Well, your Honour, that is - - -

KIEFEL J: That is an aside. You do not need to deal with it.

MR BATES: Thank you, your Honour. But what is significant about all those definitions at page 29, every single one of them, except for the last, is concerned with the issue of Aboriginal relationships, Aboriginal descent or Torres Strait Islanders. This is the sole topic that is dealt with and then in the Acts Interpretation Act which, in our contention, flows through to require that to be applied prima facie to other Acts and to the Succession - - -

KIEFEL J: Where those words appear in an Act - - -

MR BATES: Which words, your Honour?

GORDON J: You do not have “descendant” in your Act, in the Succession Act.

MR BATES: Well, your Honour, I am about to get to that link. I am almost there, your Honour. I am just trying to - - -

GORDON J: I mean, you accept that these are defined terms, do you not?

MR BATES: Yes, your Honour, except what I do say - I accept that but your Honours will notice, for example, in the definition of “descendant”, descendant includes:

(a) in relation to Aboriginal people-a descendant under Aboriginal tradition –

Now, what we have to do – it is the next amendment which completes this jigsaw puzzle. If your Honours go to a further amendment about 18 months later in the miscellaneous amendments to the Interpretation Act, starting at tab 3, at page 31 of the bundle, those amendments came in 18 months later, in December of that year. If your Honour goes to page 38 of the bundle, you will see one additional critical word added, and another definition added to section 36, namely “child”, the very word that your Honours correctly pointed out to me was not there in 1992:

“child”, if age rather than descendancy is relevant, means an individual who is under 18 –

Now, it is true that this specific section alluded to two aspects of the concept of “child”. It is referring to “child” in the sense of an age but it is alluding to the concept of “child” in a relationship in a descendancy sense. If age - the word “if” is important:

if age rather than descendancy is relevant -

Now, your Honour, what we say, and I am going to try and make that good in a moment from the Acts Interpretation Act itself, but what we say is that when your Honours look at that whole group of definitions at page 29 of the bundle, that was in the 1992 Act, and you add to that that additional word, “child” at page 38, this is a network of interrelated definitions in which each part of these definitions provides some meaning and colour to the others.

This is not a circular argument. The argument was criticised at page 29 of the application book in paragraph [22] by Justice Fraser who said this was a “circular argument”. With respect, it is not a circular argument. This is an argument where the context is that Part 5 of the 1992 Act really stands apart from the earlier drafting provisions and is adding a network of definitions designed to in fact partly implement this idea of setting out defined words.

If I could take your Honours next to the consolidation of the Acts Interpretation Act at the end of 1993, which starts at tab 4, page 43 of the bundle. This now conveniently brings together the Act at the end of 1992 and includes the amendments that I have taken you to specifically. I just want to take you your Honours to a few specific aspects. First of all, can I take your Honours to page 49. As is common, section 2:

This Act applies to all Acts (including this Act) -

self-referential but of course includes, amongst other things, the Succession Act 1981. If your Honour then goes to page 52 of the bundle, section 14A(1):

In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation -

not merely if there is ambiguity, not merely if you are facing a choice between.....but the context is that you try and adopt at the foreground the interpretation that will best achieve the purpose and we say that when you go back to that 1992 Act, when you look at Part 5, when you look at the way those definitions are interrelated, when you look at the definition of “fundamental principles” in section 4(3)(j), the best interpretation is one that adds this additional concept of descendancy in relation to Aboriginal people.

GORDON J: Is not one of the very large hurdles you face section 32A of the Acts Interpretation Act which says that you cannot pick up definitions from this Act and just apply them across the board. One has to look them in the context and what it says is:

Definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires.

If you go back to the Succession Act, does it not define “child” for the purposes of that Act with its own particular context and subject matter?

MR BATES: Well, your Honour, my submission is that it does because what section 32 says, and we rely on, is that although that definition of child talked about descendancy, section 32 is dealing with derivatives and a derivative of a descendancy is a descendant. We say when one goes back, as your Honour has said, to page 8 of the legislation bundle - - -

KIEFEL J: The definition of “child” in the Succession Act is an exclusive definition. It does not, for example, say “the word ‘child’ includes”. It is exclusive. It states the three categories that come within the definition. That makes it very difficult for any other Act to operate on it, even if the Acts Interpretation Act did.

MR BATES: Well, your Honour, my submission is that it is applying to that part of the Act because the words “any child”, it talks about those words “in relation to”. If your Honour goes back to the bundle for a moment, at page 8, at tab 1:

“child” means, in relation to a deceased person -

Now, in this case the deceased person is an Aborigine. The applicant is an Aborigine. My submission is that in that context, that context, it does flow across, having regard to the way in which Part 5 of the 1992 Act has been constructed. This is not adding any - making any change for a non-Aboriginal applicant. A non-Aboriginal applicant still has to be biologically connected.

This is recognising that the legislation has required that the aboriginality be taken into account in this notion of descendancy. What we say is, therefore, that although this uses the word “means”, this is a case where in fact the Acts Interpretation Act does flow across because it is carrying out that purpose required by the Acts Interpretation Act of giving effect to this situation. All we are doing here is adding a situation between Aborigines where no other applicants are affected. My submission is that that proposition is made out.

Again, your Honours, and going back to Justice Gordon’s comment, if I go to page 76 of the legislation bundle in tab 4, section 32AA says one has to have regard to what were both sets of definitions in both Acts. Your Honour, my submission is that Part 4 of the Succession Act does not freeze the definition of “any child” to a biological connection in relation to Aboriginal claimants in a circumstance where one has such a clear stipulation, we submit, in the 1992 Act that the network - that Aboriginal descendancy was and, indeed, to be given an important place in the construction of Queensland legislation.

Your Honours, if I take your Honours back for a moment to that network of definitions which are set out in the 1929 Act at page 29, your Honours, there are many features here which collectively indicate an intention to flow through to the Succession Act. It talks about, in the definition of “Aboriginal tradition” at three levels, generally - that is, Aborigines generally, or, as an alternative:

of a particular community or group -

There was evidence here from Dr McKeown that this particular community, the Maiwali group, follows a tradition of informal adoption. It also says in that definition of “Aboriginal tradition” that it applies to “particular persons” such as in this case the applicant and the deceased and also used that very word at the very end of that sentence, “relationships”.

This is a relationship between the applicant and the deceased. My submission is that Parliament is clearly showing here in Part 5 that, at least in regards to Aboriginal claimants, that has been encompassed and in my respectful submission the construction that was being placed by the applicant, which was accepted by the primary judge, was important.

If your Honours accept that there are certain consequential matters that were raised in the special leave to deal with the termination of proceedings on a summary basis and the declaration of parenthood, but it all comes down really to whether or not your Honours accept that the construction proposed by the applicant is one that was both open and, indeed, to be preferred to give effect to the purpose of the legislation. They are the applicant’s submissions, your Honours.

KIEFEL J: We need not trouble you, Mr Fleming.

We consider this matter has insufficient prospects of success to warrant a grant of special leave. Special leave is refused with costs.

AT 12.14 PM THE MATTER WAS CONCLUDED