Black v McIntyre

[1991] HCATrans 364

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B37 of 1991

B e t w e e n -

CECELIA LYLE BLACK

Applicant

and

LACHLAN YOUNG McINTYRE, ANN

MARY McINTYRE, HAMISH BOAZMAN

McINTYRE, DOUGLAS BOAZMAN
McINTYRE and GEOFFREY LACHLAN

McINTYRE

Respondents

Application for special

leave to appeal

BRENNAN J
DAWSON J

McHUGH J

Black 1 13/12/91

TRANSCRIPT OF PROCEEDI-NGS

FROM BRISBANE BY VIDEO LI~K TO CANBERRA ON FRIDAY, 13 DECEMBER 1991, AT 9.30 AM

Copyright in the High Court of Australia

MR J.G. CROWLEY, QC: If the Court pleases, I appear with my

learned friend, MR H.A. WELD, for the applicant.

(instructed by Trennery & Robinson)

MR J.S. DOUGLAS, QC: If the Court pleases, I appear with my

learned friend, MR J.A. COSTELLO, for the

respondent. (instructed by Fox & Thomas)

BRENNAN J: Thank you. Mr Crowley.

MR CROWLEY:  If the Court pleases, this is an application

for special leave to appeal in regard to an order

for family provision made originally by

Mr Justice de Jersey, with which the Full Court

refused to interfere. The testator died in May of

1990, aged 90, leaving a will dated 26 October

1989.. He had two children: the applicant, Mrs

Black, who is now aged about 50, and Mr Lachlan

Young McIntyre, aged now about 52.

BRENNAN J:  We have read the judgments, Mr Crowley.

MR CROWLEY:  Thank you. If the Court pleases, then, I

should move, if I might, to page 31 of the

application book because, at that page we refer, in

the affidavit of Mr Robinson, to a number of
matters where Mr Justice Thomas, who delivered the
only judgment of the court, made findings or
statements which were contrary to those made by the

learned chamber judge and, in the first place, at

subparagraph (l)(i) -

BRENNAN J: Could you identify the question of principle on

which you seek special leave?

MR CROWLEY:  Yes, we can, if the Court pleases. We were

proposing to simply say that the judgment in the

Full Court was wrong, and then we were moving to,

if we might, page 34 of the booklet.

McHUGH J:  Mr Crowley, the fact that the judgment was wrong

is not a special leave point.

MR CROWLEY:	Your Honour, that is, as we would understand, the commencement to it, and then we have a matter
of importance which we wish to raise and which is
set out in the affidavit at page 34, as we have
already mentioned.

BRENNAN J: Page 34 is where you raise the question of:

"absolute scope and limit of the Testator's

bounty".

MR CROWLEY:  Thank you, Your Honour, that is what we wish to

come to.

Black 2 13/12/91

BRENNAN J: What does that mean?

MR CROWLEY:  Your Honour, it was first given vent in the

case of re Allen, Allen v Manchester by Mr Justice

Salmon. If we could turn to that authority,
(1922) NZLR 218. At page 220, in opening,

His Honour said this:

The Act is, on the contrary, designed to

enforce the moral obligation of a testator to
use his testamentary powers for the purpose of
making proper and adequate provision after his

death for the support of his wife and

children, having regard to his means, to the

means and deserts of the several claimants,

and to the relative urgency of the various

moral claims upon his bounty. The provision

which the Court may properly make in default

of testamentary provision is that which a just

and wise father would have thought it his

moral duty to make in the interests of his

widow and children had he been fully aware of

all the relevant circumstances.

His Honour proceeds then, at page 221 in the

next paragraph, to refer to the fact that there are

two classes of case in applications of this kind.

The first and by far the most numerous class -

and I am reading from page 221, about point 3 -

consists of those cases in which, owing to the

smallness of the estate and to the nature of

the testamentary dispositions, the applicant

is competing with other persons who have also

a moral claim upon the testator. Any

provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons

to whom the testator owed a moral duty of

support.

Might we stop there and then proceed to page 222 at

the top. His Honour there says:

The second class of case is that in

which, owing to the largeness of the estate or

the nature of the testamentary dispositions,

the applicant for relief is complaining not of

the unjust distribution of an inadequate fund

among dependents all of whom had a moral claim

upon the testator, but of the failure of the testator to make out of the abundance of his resources a provision sufficient for the

proper maintenance of the claimant. In such a

case, of which the present is an example, the

Black 3 13/12/91

function of this Court is not, as in the first

class of case, that of distributing an

insufficient fund, as far as it will go, among

the various dependents in accordance with

their relative needs and deserts. It has the

more difficult function of determining the

absolute scope and limit of the moral duty of

a wealthy husband or father to make

testamentary provision for the maintenance of

his widow and children. In the first class of

case the Court has to judge between the

competing claims of different dependents; in

the second class of case it has to judge

between the claim of a dependant to be

maintained by the testator and the claim of

the testator himself to do as he pleases with
his own.

Now, that was picked up and adopted in Bosch's

case, although the reference to the principle at
page 220 was actually quoted by Lord Roma at page
479, to which, if the Court pleases, we should go.

BRENNAN J: Which case is this?

MR CROWLEY: It is Bosch v Perpetual Trustee Company,

(1938) AC.

McHUGH J: But the Full Court did not fail to recognize that

principle; they referred to it in their judgment.

They simply said that your submission overlooked

the benefits which had been received by your client

in a father's lifetime.

MR CROWLEY:  Yes, Your Honour. They did say that, but in

fact they did not refer to the Western Australian

Full Court authority of Bondelmonte v Blanckensee,

which has picked up the Allen v Manchester

principle and applied it in Western Australia in

the particular type of case. Apart from that, the

Full Court made mistakes in its reasons - - -

DAWSON J: Before you go to that, it is not self-evident to

me, Mr Crowley, that an estate of a million dollars

or so is a large or wealthy estate in the sense in

which the second category speaks, where you have a

rural property involved.

MR CROWLEY:  Yes, Your Honour. The learned chamber judge

himself spoke in his reasons for judgment of the

large estate and during the course of the evidence

spoke of an enormous estate, and that was his

judgment in regard to that matter as at the

hearing.

DAWSON J:  And that seems to me to be rather an

overstatement still.

Black 4 13/12/91

MR CROWLEY: Well, Your Honour, the position really is that

the applicant received the sum of $70,000 under the

will and the residue, which was $800,000 - and that

is a clear sum because one thing which was referred

to by His Honour Mr Justice Thomas, that this is an

unencumbered property - it is not like the

properties we know of perhaps nowadays, in these

times, where there are substantial mortgages - this

is totally unencumbered. It had made profits at

all times in the previous years and

Mr Justice Thomas made reference to those facts.

McHUGH J:  Mr Crowley, your client received $209,000 in her

father's lifetime from him.

MR CROWLEY: That was a present value sum, Your Honour, yes.

McHUGH J: That was a relevant factor to take into account

in determining what was the moral obligation of the

testator, was it not?

MR CROWLEY:  It was a relevant factor, Your Honour, but by

no means a determining one, in our submission, and

we say that because though that had occurred the

stark reality was that as at the date of death the

woman was married, divorced, penniless in the sense

that she had no funds, was working in a business

where her maintenance was bringing in more than the

business return. It was in the year 1989

approximately $150 a week.	She did not own a
house.	She was living with a Mr Woodside, but the

difficulty was that he was himself faced with a

property settlement and the learned chamber judge

had observed that any suggestion of assistance from

him was simply speculative.

So that at the time of his death the testator

was and must have been aware - because they had

kept, of course, in contact, she was on good terms

with him - must have been aware of the fact that

though he had made that provision his moral duty at

this stage required him to do more than give her a

sum which did not even take her out of debt.	The
evidence was, and it was found by the learned

chamber judge, that she had liabilities of $91,000,

and so the $70,000 which he gave her in his will

only allowed her to pay a portion of that, leaving

still $21,000, and she was in a business which was

viable but it was not meeting her weekly

maintenance requirements.

BRENNAN J:  Mr Crowley, you had a finding that there was a

breach of testamentary obligation.

MR CROWLEY: Correct, Your Honour.

Black 13/12/91

BRENNAN J: And then the question is the extent to which the

Court ought to make a remedial order.

MR CROWLEY:	Yes, Your Honour.
BRENNAN J:	Your argument really is that in the

circumstances of this case, having regard to the

relevant principles, the award was not generous

enough.

MR CROWLEY:  Yes, Your Honour, but that is not really

dignifying it at the level to which it ought be

dignified, in our submission.

BRENNAN J:  The level to which you need to dignify it to get

special leave, you mean.

MR CROWLEY:  Your Honour, we would rather it in our terms

but the point about it, in our submission, is this,

that the court really did not even - although, with

respect to what His Honour Mr Justice McHugh has

said - make proper consideration of the authorities

as they are relevant to this type of case.	It is,
in our submission, important to refer to

Bondglmonte v Blanckensee, the Western Australian

case, because it was in 1989. It referred to

Allen's case. It then, of course, took up and quoted at length from Bosch's case and it then, in

itself, gave to an applicant, in much the same

position as this applicant here, the sum of

$180,000 out of an estate of $380,000.

In that case, the sums had gone to charities

and Mr Justice Malcolm, in the judgment of the

court, stated that the wishes, which was that the

charity, the Curtin University in Western

Australia, should be benefitted was not a wish

which the court, when deciding on the quantum of

the case, should take into account.

McHUGH J: Did not the learned trial judge in this case take

the view that if she was awarded another $70,000,

it would discharge her debts fully and leave her

with a residual fund of $50,000?

MR CROWLEY:  He did take that into account, Your Honour, he

did.

McHUGH J: And that was in addition to the money that both

she and her children had receiving during the

testator's lifetime.

MR CROWLEY: Correct, Your Honour.

McHUGH J: Well, people might take the view that perhaps

more should have been awarded but where is the

Black 6 13/12/91

question of public importance? Where is the

special leave point?

MR CROWLEY:  Your Honour, it is the necessity, in our

submission, in the jurisdictions throughout

Australia and this Court, in our submission, has the obligation to, as it were, control and

determine, so far as possible, the consistency of

decisions throughout Australia. It is the

necessity that the Full Courts throughout Australia

do give proper weight to the principle extended in

Bosch's case as recognized in 1989 by the Full
Court in Western Australia in the case of

Blancensee v Bondelmonte.

McHUGH J: But this is an area where consistency of decision

is not easy to arrive at because it is a

discretionary judgment, and there are many factors to be taken into consideration, and what one trial

judge emphasizes another one may not give so much

weight to. So you may well have different amounts

awarded on, relevantly, the same facts, without any

breach of the principles embodied in the Act.

MR CROWLEY:  Yes. Your Honour, accepting what has fallen

from Your Honour, we would submit it is even more

important that we do be given special leave because

in these circumstances where there are

discretionary remedies it is necessary then for the

High Court to have a careful controlling and

overseeing position in regard to States which may

drift away from the principles which have been

enunciated, which are accepted, but which are not

applied.

McHUGH J:	I cannot see any drifting away from the relevant principles in this judgment and, indeed, at page 34
of your book you simply say that they failed to apply the principles, you do not say that they did not recognize them.
MR CROWLEY: Well, with respect, the application is really

what is in issue.

BRENNAN J: That is the problem, is it not, because once you

get to the stage of saying there is no dispute

about the principles, their application is in

issue, we are in the area where it is simply a

question of the application of recognized

principles to a particular set of facts, and that

is the difficulty you face, Mr Crowley?

MR CROWLEY:  Your Honour, what we meant by saying that it is

the application, in our respectful submission,

means that it is no good that the court simply

says, "We know about it", the court must, in its

judgment, demonstrate that it has taken it into

Black 13/12/91

account and, in this case, in our submission,

demonstrably it has not.

DAWSON J: Why, because there was not enough?

MR CROWLEY: Sorry?

DAWSON J: Because not enough was awarded? Well, that is

what you put, is it not?

MR CROWLEY:  Your Honour, it is because, really, Bosch's

case and Allen's case - - -

DAWSON J:  No, but the reason why you say it is demonstrable

that the principles were not applied is because you

say not enough was awarded, is it not?

MR CROWLEY:  We would submit that that is the outcome, but

it is not the reason. If one reviews the judgment

of His Honour - and if we could take the Court to

page 18 of the booklet - at the top of the page,

His Honour first deals with a submission which we

made about the fact that:

$70,000.00 in an est·ate of $1 million is far

from the absolute scope and limit of the

testator's bounty".

He refers then simply to re Allen without in any

way demonstrating that he has considered the

principle. Indeed, the rest of that paragraph on

page 18 deals with a suggestion that we were

submitting that there should be some parity. With

respect, that was not so at all. Indeed, what the

court said is that if you add the present value of
those sums which the applicant received before
death and you add the present value of the sums
which the son received before death and you add the
present sums which each of them received, that is a

way of saying that between the families there is

some broad parity, and it was not even very close
then.	We did not ever make that submission but

His Honour dealt with it there. At the bottom of

page 18, His Honour goes on:

Mr Crowley further submitted that the learned

judge had placed undue emphasis upon the

preservation of the property, and that as
power of sale was given by the Will, the
prospect of selling the property in order to
increase provision for the appellant should

not have affected the level of the award.

However, having observed that he should not

ignore the deceased's wish that the McIntyre

children retain the property intact "unless it

is necessary for me to do that in order to

make provision now for Mrs Black's proper

Black 13/12/91

maintenance support", His Honour expressly

paid primary attention to Mrs Black's

position.

With respect, that was a reference to a statement

by His Honour the learned chamber judge. We should

take the Court to it if the Court will - - -

BRENNAN J: Why, Mr Crowley?

MR CROWLEY: Because, Your Honour, it is a reference to the

recognition by His Honour that he could have paid

more, save that it was necessary in the terms of

evidence from a Mr Wiley on affidavit that the

property would require, according to Mr Wiley,

396,000 spent on it in the next two years to

increase its viability and change its use from a

grazing property primarily to a farming property.

BRENNAN J:  How is this getting you to a question of

principle?

MR CROWLEY: Because, Your Honour, His Honour

Mr Justice Thomas, in that passage which we

referred to at the bottom of page 18, really did

not look at any principle, nor anywhere on page 18

look at any principle at all.

McHUGH J: Yes, but over on page 20 Mr Justice Thomas said:

More could have been awarded, as His Honour

recognised, but His Honour was by no means

bound to go further than he did.

His Honour said that in his view there was no

breach of any particular principle emerging from

the case. He said that the learned trial judge did

not misunderstand the facts or misapply the law.

MR CROWLEY:  In our submission, there is certainly some

did in fact wrongly take into account the necessity	support for the fact that the learned chamber judge	for moneys to be spent on the property to the
detriment of the sum which was proposed to be paid by the court to the applicant.

BRENNAN J:  We understand you wish to cavil at the approach

that was taken, Mr Crowley, but you understand the

problem which has been put to you with regard to

the raising of a question of principle and the

settling of a question of principle. If it is a

question simply of ensuring that principles are
applied uniformly or satisfactorily throughout the

courts of Australia, then we need to look not at

the facts of the particular case; we need to look

at a trend or pattern. Neither of those things

seems to emerge from the application book. Is

Black 9 13/12/91

there anything that you wish to add which can

assist you, having regard to the problem which you

face?

MR CROWLEY:  Your Honour, we wish only to add that when one,

in accordance with His Honour's reasons at page 20,

when one looks at them, at the Full Court's reasons I mean, and one looks at page 19, the principle, in

our submission, has not been adhered to. We cannot

point to any pattern through Australia. We can

point respectfully to the Western Australian

Full Court, which we believe have recognized the

particular standard, and we would submit that it is

important that we be given special leave in order

that the principle be demonstrated as one of

universal application, not to be passed over in

Full Courts but to be recognized by them which will lead ultimately to uniformity.

BRENNAN J: Yes.

MR CROWLEY: Unless there is anything from the Court, we

cannot assist further, Your Honour.

BRENNAN J: Thank you, Mr Crowley.

MR CROWLEY:	Thank you, Your Honour.
BRENNAN J: We need not trouble you, Mr Douglas.	In the

Court's view this application raises no question of general public importance which would justify the grant of special leave. Accordingly the

application is refused.

MR DOUGLAS:  Could the Court order that the application be

refused with costs?

BRENNAN J:	What do you have to say about that, Mr Crowley?
MR CROWLEY:	If Your Honour pleases, we cannot resist that

order.

BRENNAN J: The application is refused with costs.

AT 9.54 AM THE MATTER WAS ADJOURNED SINE DIE

Black 10 13/12/91