LC v. The Public Trustee of Qld [2008] QSC 51 (17 March 2008)

Last Updated: 19 March 2008

SUPREME COURT OF QUEENSLAND

CITATION:	LC v The Public Trustee of Qld [2008] QSC 51
PARTIES:	LC (applicant) v THE PUBLIC TRUSTEE OF QUEENSLAND as personal representative of the estate of RJ, deceased, intestate (respondent)
FILE NO:	1654/08
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	17 March 2008
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	10 March 2008
JUDGE:	Douglas J
ORDER:	Originating application dismissed.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – APPLICATIONS – where applicant and deceased were involved in a de facto relationship – where the applicant and the deceased had not continuously lived together on a genuine domestic basis for at least two years prior to deceased’s death – where deceased died intestate – whether application incompetent having commenced after the death of the deceased. Acts Interpretation Act 1954 (Qld), s14A(1), s14B(3)(b), s32DA Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s2(1) Property Law Act 1974 (Qld), s255, s282, s283, s287(c), s291, s292, s315, s322, s323 Succession Act 1981 (Qld), s5AA(2), s41(8), s66(1) Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, cited Barder v Caluori [1988] AC 20, cited Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137, cited D’Este v D’Este [1973] Fam 55, cited Diamond v Diamond and Elliot (1951) SR (NSW) 84, cited Kalejs v Minister for Justice and Customs [2001] FCA 1769; (2001) 111 FCR 442, cited King v King [1974] Qd R 253, applied Maconochie v Maconochie [1916] P 326, cited Read v Nicholls [2004] VSC 66, applied Scheps v Cobb [2005] NSWSC 455, cited Skene v Dale [1990] VicRp 53; [1990] VR 605, applied Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290, cited
COUNSEL:	M.R Bland for the applicant A.P.J Collins for the respondent
SOLICITORS:	QBM Lawyers for the applicant Official Solicitor to the Public Trustee for the respondent

[1] Douglas J: The applicant has commenced proceedings under Pt 19 of the Property Law Act 1974 against the Public Trustee of Queensland as the personal representative of the deceased. He died intestate on 20 June 2007. The applicant’s evidence is that, at the time of his death, she and the deceased were planning to marry, having been engaged in December 2006. They had bought a property in common in October 2006 and she had paid money towards the repayment of a loan related to the purchase of the property.

[2] She had been in a relationship with the deceased since September 2003 but her evidence is that they had not lived together as a couple on a genuine domestic basis continuously for at least two years before the deceased’s death. On that basis she is not entitled to be treated as a spouse under s. 5AA(2) of the Succession Act 1981 so as to entitle her to claim adequate provision from the deceased’s estate. She asks, however, for a property adjustment order under s. 287(c) of the Property Law Act because of the substantial contributions she says she has made under s. 291 and s. 292 of that Act.

[3] The Public Trustee takes the point that the application is incompetent, having been commenced after the deceased’s death. The right to claim against the deceased, it argued, was a personal right that died with him. The issue the Public Trustee seeks to argue, as re-formulated by its counsel, Mr Collins, during argument is as follows:

“In the event that two persons were ‘de facto partners’ (as defined by s. 32DA of the Acts Interpretation Act 1954), and where the de facto partner who applied for the order had made substantial contributions of the kind mentioned in s. 291 or s. 292 of the Property Law Act and where failure to make the order would result in serious injustice to that de facto partner, is the applicant entitled to commence proceedings for a property adjustment order pursuant to s. 287 of the Property Law Act after the date of death.”

A cause of action or a personal right?

[4] If the right under Pt 19 constituted a cause of action subsisting against the deceased for the purposes of s. 66(1) of the Succession Act then that subsection provides that it would survive against his estate. The authorities suggest, however, that this type of statutory remedy is a personal right not properly described as a cause of action; see King v King [1974] Qd R 253, 255-258; Skene v Dale [1990] VicRp 53; [1990] VR 605, 609-610, 611-612 and Read v Nicholls [2004] VSC 66 at [44].

[5] In D’Este v D’Este [1973] Fam 55, 59 in a passage extracted by Kaye J in Skene v Dale at 611-612, Ormrod J (as he then was) characterised this issue of the survival of causes of action by saying:

“It seems to me, first of all, in broad principle that the Act of 1934 was passed to deal with a particular anomalous ruling or common law rule which had existed for centuries, and it was directed essentially to that. It seems to me that one must be extraordinarily cautious in extending or widening the meaning of the phrase ‘cause of action,’ particularly when one is asked to extend it into a completely different section of the law.

In my judgment, the real answer to this application is this, that the whole of the matrimonial causes legislation, right back to 1857, is essentially a personal jurisdiction arising between parties to the marriage or the children of the marriage. The death of one or other of the parties to the litigation has nothing whatever to do with the old common law rule which was abrogated by the Act of 1934. The fact that these applications abate by death derives, in my judgment, from the legislation which created the rights, if they are rightly called ‘rights’, and from no other source. If that is correct, then it is not necessary to examine very closely whether or not the administratrix in this case has something which could be called, by any stretch of imagination, a cause of action.”

[6] The New South Wales legislature has made it clear in s. 2(1) of their Law Reform (Miscellaneous Provisions) Act 1944 (NSW) that claims under their equivalent of Pt 19 do not survive against the deceased’s estate.

[7] Mr Bland criticised the approach in decisions such as Skene v Dale because they were based partly on the view that there was a rule that where one of the parties to a divorce suit had died, the suit abated, so that no further proceedings could be taken in it; see Maconochie v Maconochie [1916] P 326, 328, discussed in Skene v Dale at 610 and King v King at 255-257. In King v King Lucas J took the view at 257 that subsequent English cases justified the conclusion that, an order for the transfer of property having been made, it created a “cause of action” which survived death and was capable of being enforced under the predecessor of s. 66(1) of the Succession Act. He decided instead to follow a decision of the New South Wales Full Court in Diamond v Diamond and Elliot [1950] NSWStRp 34; (1951) 51 SR (NSW) 84, 90-91 that their law reform legislation relating to the survival of causes of action did not apply to the enforcement of orders for costs in a matrimonial dispute.

[8] Mr Bland drew my attention, however, to the decision of the House of Lords in Barder v Caluori [1988] AC 20, 37 D-F where Maconochie v Maconochie was disapproved in favour of the view that:

“The real question in such cases is whether, where one of the parties to a divorce suit has died, further proceedings in the suit can or cannot be taken ... the answer to that question, when it arises, depends in all cases on two matters and in some cases also on a third. The first matter is the nature of the further proceedings sought to be taken. The second matter is the true construction of the relevant statutory provision or provisions, or of a particular order made under them, or both. The third matter is the applicability of section 1(1) of the Act of 1934.”

[9] The section to which his Lordship there referred was the English legislation dealing with the survival of causes of action.

[10] There is also a useful extended discussion of the issues by Kenny J in Kalejs v Minister for Justice and Customs [2001] FCA 1769; (2001) 111 FCR 442 where her Honour said at 446-448, [15]-[21]:

“[15] The common law distinguished between rights, or causes of action, that were transmissible from the deceased to his or her legal personal representative and rights that were not. Prior to the English Law Reform (Miscellaneous Provisions) Act 1934 (the 1934 Act) and to its legislative counterparts in other common law jurisdictions, it was generally accepted that actions in contract sounding in pecuniary damage, or actions on proprietary rights and the like, were transmissible, although generally actions in tort were not. The latter actions were subject to the doctrine expressed in the maxim, actio personalis moritur cum persona (that is, a personal action dies with the person). This meant that a right of action for tort was brought to an end by the death of either party: see, for example, Ryan v Davies Brothers Ltd [1921] HCA 53; (1921) 29 CLR 527 at 532; Harris v Lewisham and Guy's Mental Health NHS Trust [2000] EWCA 52; [2000] 3 All ER 769 at 774. In the United Kingdom, the 1934 Act replaced the common law. A counterpart provision in Victoria is s 29 of the Administration and Probate Act 1958 (the Victorian Act).

[16] Section 29(1) of the Victorian Act is in the following terms:

"Subject to the provisions of this section, on the death of any person, all causes of action subsisting against or vested in him shall survive against or (as the case may be) for the benefit of his estate:

Provided that this sub-section shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other."

This provision corresponds with s 1 of the 1934 Act in England. Section 29 of the Victorian Act may be rendered applicable to the present proceedings by s 79 of the Judiciary Act: cf Commissioner of Stamp Duties (NSW) v Owens (No 2) [1953] HCA 62; (1953) 88 CLR 168.

[17] Section 29 of the Victorian Act, like its counterparts elsewhere, was passed to abolish the common law rule that actions in tort did not survive for the benefit of, or against, the estate of the deceased. Some judges have expressed the view, however, that this legislation is irrelevant to a question of the kind that arises in this case, namely, whether rights under statute are transmissible or not.

[18] This view is implicit in the reasoning of the Full Court of this Court in Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290. The Full Court held in Stephenson that a complaint made to the Commission under the Sex Discrimination Act 1984 (Cth) did not abate on the complainant's death. It reached that conclusion upon a proper construction of the statute under which the relevant rights arose. Although Stephenson did not concern an application for the curial enforcement of a right, the observations of Wilcox J (with whom Jenkinson and Einfeld JJ agreed), as to how a matter of this kind should be approached, are apposite to this case. His Honour stated (at 296-297):

"I do not think that common law rules are relevant to this case. Those rules were evolved by judges as necessary ancillaries to substantive common law principles, also evolved by the judges. They are meaningful only in relation to the common law actions to which they relate. Where a right of action is created by statute, guidance must be sought in the statute itself; a Parliament that creates a cause of action may ordain as it pleases in relation to the cause of action's survival on death of a party. And the same principle applies in relation to a statutory entitlement that falls short of constituting a `cause of action', as lawyers use that term, or a statutory proceeding.

If the common law rules are irrelevant, it follows that s 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) is also irrelevant."

Section 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) is the equivalent of s 29(1) of the Victorian Act.

[19] The Court of Appeal of the Supreme Court of New South Wales pursued a similar analysis in Fines. The Court of Appeal held in that case that a statutory right of appeal, again to an administrative tribunal, in a disciplinary case, which was capable of affecting a deceased teacher's financial entitlement, was transmissible to his legal personal representative. The teacher had died before the determination of the appeal. Mahoney JA stated (at 388-389):

"The question whether statutory rights of this kind are to survive death depends upon the intention of the legislature; there does not appear to be any general or presumptive rule: see Jones v Simes (1890) 43 Ch D 607; Dean v Wiesengrund [1955] 2 QB 120 and the cases there referred to; see the discussion of an analogous question in Mayne v Jaques [1960] HCA 23; (1960) 101 CLR 169. Although in terms the right granted to him by the Act may be merely a right of appeal, the grant of that right carried with it the substantive rights, to salary, wages or allowances and the like, referred to in the [Government and Related Employees Appeal Tribunal Act 1989 (NSW)]: see, for example, Mayne v Jaques (at 171-172) per Fullagar J.

...

I see nothing in the terms of the Act or its purposes which leads to the conclusion that the legislature intended that, by the (accidental) fact of death pending the appeal, the right of a member of the teaching service and his family to have such remuneration should be taken away. An appeal might be pending for a significant time. During that time he might not be able to derive income. If a legislative intention is to be inferred, it is I think that the right to claim the discretionary allowance of this should continue notwithstanding his death."

There are a number of cases in England where the courts have pursued the same kind of analysis in connection with the curial enforcement of statutory rights: see Rickless v United Artists Corporation [1988] QB 40 at 56 and Barder v Caluori [1988] AC 20 at 37.

[20] An alternative approach to the question of the present kind is that adopted by the English Court of Appeal in Harris and, in Victoria, by Kaye J in Skene v Dale [1990] VicRp 53; [1990] VR 605. In the former case, the English Court of Appeal held that a claim for pecuniary compensation for discrimination contrary to anti-discrimination legislation could survive the death of a complainant upon the basis that the claim was a "cause of action within the meaning of the 1934 Act": at 774 per Stuart-Smith LJ; at 776 per Mummery LJ (with Ward LJ agreeing with both). On this approach, the critical question would become whether any of the rights formerly vested in Mr Kalejs constituted a "cause of action" within the meaning of s 29 of the Victorian Act. This was also how Kaye J approached the matter in Skene v Dale at 612-614.

[21] Ultimately, I do not think it matters which is the preferred approach. If, as a matter of statutory construction, the statutory right is not transmissible, then it is not a cause of action that survived Mr Kalejs for the benefit of his estate, within the meaning of s 29(1) of the Victorian Act.”

The true construction of Pt 19

[11] In the circumstances it seems appropriate to me to approach the question of whether the applicant could bring her application after the deceased’s death primarily as a question of construction of Pt 19 and the relevant sections of the Succession Act. That was the approach advocated by Mr Bland for the applicant. He argued that the question should be treated as a question of construction of the statute, referring in particular to Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290, 296-297 and Barder v Caluori at 37 D-F.

[12] In that context, he submitted that the Property Law Act does not state expressly that the survivor of a de facto partner is not entitled to bring an application of this nature. He also drew my attention to s. 283 which provides that a de facto partner may apply for a property adjustment order “after a de facto relationship has ended”. That section may not assist an applicant, however, if the relationship continues until death. It is consistent with a regime that would leave the de facto partner’s rights to be determined under the Succession Act if he or she can be treated as a spouse under that legislation.

[13] Mr Bland also pointed to s. 322 which provides that a declaration about the existence of a de facto relationship may be made whether or not either partner is alive. Admittedly, that section is not limited to applications under Pt. 19; see s. 323.

[14] In arguing for a purposive construction of the Act, pursuant to s. 14A(1) of the Acts Interpretation Act, he also drew my attention to s. 255(a), s. 255(c) and s. 282 of the Property Law Act and to the second reading speech when the Attorney-General introduced the Bill. The Attorney-General said, at p. 5147 of the Queensland Parliamentary Debates on 23 November 1999:

“The Queensland Law Reform Commission produced a final report – No. 44 – in June 1993 on de facto relationships. It also recognised the need for reform in this area. The Law Reform Commission noted that the difficulties that exist without legislation are –

it can be very costly to establish an equitable title, as the de facto spouse did in Baumgartner;

there must be the application of intricate and sophisticated principles of equity;

relief must be sought under the law of contract of trusts or doctrines of unjust enrichment or unconscionable conduct, equitable lien estoppel or other – obscure – legal remedies;

this causes injustice to the person whose title equity would recognise if given the opportunity;

there is no predictable outcome and lawyers complain of difficulty advising clients, which results in a tendency to plead a case under every conceivable head of relief, longer court hearings and greater costs;

there is a large range of possible remedies and consequent uncertainty as to which remedy to pursue;

settlement prospects are affected and many parties forgo pursuing just claims.”

[15] The report of the Queensland Law Reform Commission referred to by the Attorney General had been tabled in Parliament on 15 July 1993 and is able to be considered in the interpretation of this part of the Property Law Act; see s. 14B(3)(b) of the Acts Interpretation Act 1954. I shall refer to some of the discussion in that report shortly.

[16] Section 255 and s. 282(1) of the Property Law Act set out the main purposes of Pt 19 and of the subdivision of the Act dealing with the adjustment of property interests. They include the resolution of financial matters or the distribution of property at the end of a de facto relationship.

[17] Mr Bland submitted that, because the applicant’s relationship with the deceased had not existed continuously for the two year period before he died, she did not qualify as a spouse under the Succession Act and would be left in a legislative limbo were she not capable of claiming pursuant to s. 287(c). She would be left only with her rights to seek the intervention of equity through a declaration that property was held for her on a constructive trust; see Baumgartner v Baumgartner (1987) [1987] HCA 59; 164 CLR 137, 149-150. That remedy was the one intended to be amplified in respect of de facto partners by Pt 19. Part 19 should be read broadly in his submission to cover people in the applicant’s position even where they had not commenced proceedings before the death of the de facto partner against whom she claimed a property adjustment order.

[18] The first hurdle facing that argument is that the Act does not provide explicitly that proceedings of this nature may be commenced against the estate of a deceased de facto partner. Where the traditional view of the common law had been that such a claim would constitute a personal right ceasing on the partner’s death, in the absence of some conclusion to be drawn against that result from the proper construction of the relevant statute, one might expect the statute to be rather more forthcoming in making it clear that this particular right was meant to continue against the deceased’s estate.

[19] To the contrary, s. 315 of the Property Law Act provides as follows:

“315 Effect on proceeding of death of party

If a party to a proceeding for a property adjustment order dies before a final order has been made, a court may make an order if it considers –

(a) it would have adjusted interests in property if the deceased party had not died; and

(b) it is still appropriate to adjust the interests despite the death of the deceased party.³⁸

...

^{38 See also the Succession Act 1981, section 66(1) (Survival of
actions), ‘...on the}

^{death of any person ... all causes of action subsisting against or
vested in the person}

^{shall survive against, or, ...for the benefit of, the person’s
estate.’.}”

[20] An obvious conclusion to be drawn from the form of the section is that the power in the court to make an order where a de facto partner dies exists only if that partner was already a party to a proceeding commenced while he or she was still alive. In other words it may be treated as an application of the maxim expressio unius est exclusio alterius (the express mention of one thing is the exclusion of another); see Skene v Dale at 608 and Scheps v Cobb [2005] NSWSC 455 at [5]. Mr Collins, for the Public Trustee conceded accurately that that rule of construction must be exercised with caution and should not be applied if it would bring about a result which the legislature is unlikely to have intended; see Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 575.

[21] When one examines the Queensland Law Reform Commission Report No 44 on De Facto Relationships, however, the conclusion is reinforced that the intention expressed there was that only applications for adjustment of property rights that had already been commenced were to be allowed to be continued. The progenitor of s. 315 was cl. 56 of the Bill proposed in the report. It and the discussion about it in the Report read as follows:

“56. Effect on proceeding of death of party

(1) If a party to a proceeding for a property adjustment order dies before a final order has been made, the proceeding may be continued by or against the personal representative of the deceased party.

(2) A court may make an order if it considers that –

(a) it would have adjusted interests in property if the deceased party had not died; and

(b) it is still appropriate to adjust the interests despite the death of the deceased party.

(3) The order may be enforced on behalf of or against the estate of the deceased party.

Provided an application has commenced for an adjustment of property rights, clause 56 allows the application to be continued notwithstanding the death of either of the parties. If the court makes an order altering interests in property, clause 56(3) allows that order to be enforced on behalf of, or against, the estate of the deceased person. There are equivalent provisions in the New South Wales, Northern Territory and Victorian legislation.” (Emphasis added.)

[22] Although s. 315 was enacted in a slightly different form, its effect seems to me to be the same taking into account the footnote which draws attention to s. 66(1) of the Succession Act 1981 dealing with the survival of actions. In my view the appropriate conclusion to draw from the Law Reform Commission Report is that it was intended that proceedings could continue against the deceased’s estate only where they had already commenced. The reference in the footnote to s. 315 to s. 66(1) of the Succession Act and to the survival of subsisting causes of action also needs to be considered against the background of decisions such as Skene v Dale at 611-612 and King v King at 255-258 to which I have already referred.

[23] When one considers the form of s. 315 it is also significant that it gives the Court a discretion whether to make an order if a party to the proceeding dies. It would be anomalous if an application could be brought against the deceased’s estate, after his death, which would not be affected by the Court’s ability to exercise such a discretion in deciding whether to make an order.

[24] It seems to me to follow that s. 315 applies to proceedings for property adjustment already on foot and allows them only to continue. Section 322 gives a general jurisdiction to make declarations about the existence or non-existence of de facto relationships whether or not the partners are still alive, for purposes not confined to proceedings for property adjustment, but is not available to enable a proceeding for property adjustment to commence after the death of a de facto partner.

[25] Here the case is rather like D’Este v D’Este where the right to apply to vary a post-nuptial settlement was regarded as not constituting a cause of action which, therefore, did not survive the death. The result in that decision was not questioned in Barder v Caluori; see at 35-36. It is not as if, in this case, the existence of a de facto relationship of itself creates enforceable proprietary rights. It seems to me that it is a statutory right able to be enforced by an application to the courts under the Property Law Act and possibly continued after death only by the application of s. 315.

Inconsistency with s. 41(8) of the Succession Act

[26] Another reason advanced by Mr Collins in support of his submissions was that it would be anomalous to allow a right to commence proceedings under the Property Law Act in favour of a de facto partner up to two years after the death of the other partner where the right to claim family provision in favour of a de facto partner under s. 41(8) of the Succession Act was limited to the period of nine months after death.

[27] He acknowledged that the statutory scheme in giving rights to a de facto partner to apply for family provision under s. 5AA(2)(b)(ii) did not cover the situation of someone such as the applicant who could not establish that she and the deceased had lived together as a couple on a genuine domestic basis for a continuous period of at least two years ending on the deceased’s death but contended that that anomaly should not determine the proper construction of Pt 19.

Conclusion

[28] Therefore, in my view, the proper interpretation of the applicant’s rights to seek a property adjustment order under the Property Law Act is that such an application needed to be on foot before the death of her partner to allow it to continue to be enforced. It was a statutory right potentially available against him which ceased on his death. Section 315 has the potential to avoid that result only in respect of proceedings already commenced before his death.

[29] It is my view, therefore, that the applicant’s application is incompetent and should be dismissed. I shall hear the parties further as to costs.

Authorities Cited14

Referred to (14)