Estate of Mackenzie and Estate of Mackenzie and Anor
[2007] FamCA 882
•24 August 2007
FAMILY COURT OF AUSTRALIA
| ESTATE OF MACKENZIE (DECEASED) & ESTATE OF MACKENZIE (DECEASED) AND ANOR | [2007] FamCA 882 |
| FAMILY LAW – PROPERTY SETTLEMENT – Death of both parties – Continuation of proceedings - Jurisdiction |
| Family Law Act 1975 (Cth) Family Provision Act 1982 (NSW) Family Law Amendment Act 1983 (Cth) Bankruptcy & Family Law Amendment Act 2005 (Cth) Acts Interpretation Act 1901 (Cth) Property (Relationships) Act 1984 (NSW) |
| Re Burbidge (No 2) – BC91765 (Supreme Court of NSW) Sims v Sims (1981) FLC ¶91-072 Fisher v Fisher (No 2) (1986) 161 CLR 438 Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416 Bridge v Mattis [1953] 52 AR (NSW) 49 FCT v Ryan (2000) 201 CLR 109 Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 Hughes v Kempe & Kempe & Bocampe (2005) FLC ¶93-237 Werner-Zolotuchin v Public Trustee [2004] NSWSC 358 |
| APPLICANT: | Mr Kowal (as executor of the estate of Mr Mackenzie, deceased) |
| RESPONDENT: | Ms Mathews (as legal personal representative of Mrs Mackenzie, deceased) |
| INTERVENOR: | Ms Charles |
| FILE NUMBER: | SYF | 4200 | of | 2003 |
| DATE DELIVERED: | 24 August 2007 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Le Poer Trench |
| HEARING DATE: | 16 February 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Simpson SC |
| COUNSEL FOR THE RESPONDENT: | Mr Skinner |
| COUNSEL FOR THE INTERVENOR: | Mr Shaw |
Orders
The application of the husband filed the 15th July 2003 is dismissed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Le Poer Trench delivered this day will for all publication and reporting purposes be referred to as Estate of Mackenzie (Deceased) and Estate of Mackenzie (Deceased)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 4200 of 2003
| Mr Kowal (as legal personal representative of Mr Mackenzie, deceased) |
Applicant
And
| Ms Mathews (as legal personal representative of Mrs Mackenzie, deceased) |
Respondent
And
| Ms Charles |
Intervenor
REASONS FOR JUDGMENT
Introduction
Before the Court is an application by the personal legal representative (executor) of the husband’s estate for the following declaration:
Declare and find that in the events which have occurred Mr [Kowal] as legal personal representative of the husband is entitled to continue the property settlement proceedings initiated by the Application filed by the husband on the 15th July 2003 notwithstanding the subsequent death of the wife.
The Intervenor Ms Charles supports the making of the declaration as sought by the executor of the Husband’s estate.
The legal personal representative of the wife opposes the declaration and puts a case that there is no jurisdiction in the Court to continue to hear proceedings under section 79 of the Act where there is no live party to the marriage which enlivens the jurisdiction of the Court to hear property proceedings between parties to a marriage.
There is a second reason the legal personal representative of the wife advances for the dismissal of the husband’s case. He submits that there is no basis whatsoever for the husbands estate pursuing the current application in the Court. The estate has a value of about $11,000. The executor clearly does not have sufficient funds in the estate to pay for the litigation in this Court and he has no suitable indemnity from another source. It is further argued that the duty of an executor is to act impartially between beneficiaries. It is submitted by the wife’s estate that the intervenor is not a beneficiary. It is submitted that there is no obligation of the executor of the husband’s estate to the intervenor. The decision of Young J (Supreme Court of NSW) in Re Burbidge (No 2) – BC931765 is relied upon. That being the case, as I apprehend it, the argument is that the proceedings are an abuse of process and should therefore be dismissed.
When the case was argued before me it was agreed by all parties that I accept the chronology as attached to the submissions of the husband to set the framework in which the dispute arises.
BACKGROUND FACTS
Mr Mackenzie applied for final orders for property settlement by application filed on 15 July 2003. I shall refer to Mr Mackenzie as the Husband.
A response was filed on behalf of Mrs Mackenzie on 13 January 2004. I shall refer to Ms Mackenzie as the Wife.
The Husband was born in 1929 and the Wife was born in 1918.
The parties were married in 1959. It appears from the Wife’s response that they separated during the 1980’s. There are no children of the marriage.
On or about the 15 May 2003 the New South Wales Guardianship Tribunal made findings that the Wife was incapable of managing her personal affairs and that it was appropriate that a Public Guardian be appointed to manage her affairs for an initial period of one year. This period was subsequently extended.
On the 3rd July 2003 the husband executed a Will appointing Mr Kowal, executor and trustee of his estate and (somewhat unusually in the circumstances) bequeathing his estate to the wife. On the 15th July 2003 the husband commenced proceedings under section 79 in this Court. The wife filed a response to that application on the 13th January 2004.
The Husband’s application in this Court for final orders sought the sale of the property at an eastern Sydney suburb and the division of proceeds as to 80 per cent to the Husband and 20 per cent to the Wife.
The Husband swore an affidavit on 15 July 2003 in support of his application.
The response filed on behalf of the Wife was filed by the Public Guardian. That response sought the sale of the property at the eastern Sydney suburb and an order that the Wife receive 100% of the proceeds. The Wife had at all times been the sole registered proprietor of the property.
The Husband died on …June 2004.
On 10 November 2004 probate of the Husband’s will was granted to Mr Kowal. The Husband’s estate was valued in the sum of $11,000.
On 22 December 2004 an order was made by consent appointing Mr Kowal as the legal personal representative of the Husband for the purpose of the property proceedings in this Court.
The property at the eastern Sydney suburb was sold at the end of 2004 for the sum of $305,000 at the direction of the Office of the Protective Commissioner. After the payment of legal fees, the net proceeds of the sale were applied as follows:
·$124,751.60 remitted to the care facility where the Wife was then residing;
·$6,688.60 remitted to the Office of the Protective Commissioner;
·Balance of $162, 647.05 deposited into a controlled monies account by E H Tebbutt & Sons in the joint names of the Husband and the Wife. However as tax was being incurred and the Husband’s estate did not have a tax file number, the monies were then transferred into a bank account in the sole name of the Wife.
On 11 April 2005 the Public Guardian filed an application in a case on behalf of the Wife seeking the summary dismissal of the Husband’s application for property settlement. On 2 September 2005 Judicial Registrar Johnston dismissed the Wife’s application. The Wife was at this time still alive but suffering from dementia.
Ms Charles was born in 1956 and alleges that she was in a de facto relationship with the Husband from 1995 until his death. On 25 May 2005 Judicial Registrar Johnston granted leave to Ms Charles to intervene in the property proceedings between the Husband and the Wife. I shall refer to Ms Charles as the Intervenor. Leave was granted on the basis that the Intervenor had a vested interest in the outcome of the proceedings in that she sought to protect her potential entitlement under the Family Provision Act 1982 (NSW) by ensuring that any adjustment of property as between the estates of the Husband and the Wife be preserved until such time as her Family Provision Act application could be heard and determined. The Intervenor filed a summons in the Supreme Court of New South Wales on 27 May 2005 seeking an order for provision in her favour out of the estate of the Husband.
The Wife died on … January 2006. On 27 October 2006 Letters of Administration were granted to the Wife’s niece, Ms Mathews in respect of the intestate estate of the Wife. The Wife’s estate was valued in the sum of $290,794.
Ms Mathews has been noted as the legal personal representative of the Wife for the purpose of the property proceedings in this Court.
In November 2006 the sum of $172,058.18 was forwarded by the Office of the Protective Commissioner to Joanna Brouwer & Associates, solicitors for Ms Mathews.
Relevant Principles
The central issue in this case which must be resolved is whether s 79(8) of the Family Law Act 1975 (Cth) (‘the Act’) can be relied upon to allow the continuation of the property proceedings between the Husband and the Wife now that both are deceased.
Prior to considering the specific provisions of section 78(8) it is useful to note that there can be (nor is there in this case) no argument that if both parties to a marriage are deceased proceedings for alteration of property interests under section 79 of the Act cannot be instituted/commenced in the Court. The same is true in circumstances where one of the parties to a marriage has died. Thus it must be seen that section 79(8) provides an exception to the general principal that under the Family Law Act property adjustment does not occur where one or more of the parties to the particular marriage have died. With this “given” as the back drop for the matters which are to follow in these reasons some understanding of the intention of the legislature in enacting section 79(8) and its amendments might better be understood.
I note in passing that similar provisions (to those discussed in the prior paragraph) relate to proceedings under section 79A of the Act.
Section 79(8) was enacted by the Family Law Amendment Act 1983 (Cth). That provision provides:
Section 79
8) Where, before proceedings with respect to the property of the parties to a marriage or either of them are completed, either party to the proceedings dies –
(a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the regulations may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;
The Family Law Amendment Act 1983 (Cth) also amended s 79A by the insertion of s 79(1C) which similarly provided:
Section 79
(1C) Where, before proceedings under this section in relation to an order made under section 79 are completed, either party to the proceedings dies-
(a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the regulations may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;
Prior to the enactment of s 79(8), the Full Court in Sims v Sims (1981) FLC 91-072 found that the structure and terms of the Act did not contemplate the continuation or institution of property proceedings after the death of one or both of the parties. The object of the 1983 amendments was to confer on the Court the power to entertain property proceedings which would otherwise abate following the death of a party.
The constitutional validity of s 79(8) was upheld by the High Court in the decision of Fisher v Fisher (No 2) (1986) 161 CLR 438 and was found to be within the scope of the marriage power of s 51(xxi) of the Constitution. In explaining the purposes fulfilled by s 79(8) Brennan J commented at 458:
Section 79(8) empowers the Family Court to give effect to the moral claims made in respect of the property of the spouses which was made available to answer those claims by the commencement of the proceedings, provided "it is still appropriate to make an order with respect to property": s. 79(8)(b)(ii). That qualification on the power, coupled with par. (ca)(i) of the definition of "matrimonial cause", ensure that the jurisdiction is exercised only in cases where the moral obligations arising out of the marriage remain unsatisfied.
Section 79(8) provides machinery for the discharge of those moral obligations in priority to any rights in the property of a party to a marriage which arise by testamentary disposition of that party's property or by any other devolution of that property on that party's death. That is a law which governs an incident of marriage in that it provides the machinery for enforcing the moral obligations with respect to property arising from a spouse's marital relationship. It is a law with respect to marriage.
In the course of their judgment their Honours also turned their minds to the interpretation of the wording of s 79(8) “Where…either party to the proceedings dies”. At 447-448 Gibbs CJ reasoned:
It was further submitted that the sub-section might apply even though both parties to the marriage had died, since "either" may mean "each of two" as well as "one of two" (Currie v. Glen (1936) 54 C.L.R. 445 at p. 453) and that this consideration strengthened the argument that the sub-section cannot be given the character of a law with respect to marriage. This last submission may immediately be rejected. Clearly the word "either" in the context of s. 79(8) means "one of two" and the sub-section refers only to the case where proceedings with respect to the property of the parties to the marriage, or one of those parties, had not been completed before the death of one of the spouses.
Mason and Deane JJ held a more reserved position but nevertheless contended at 454:
Another aspect of the sub-section remains to be mentioned. The expression "either party" which appears in the opening words means "one of the two parties" so that the sub-section deals only with the case where proceedings are not completed by reason of the death of one of the parties. That being so, it is unnecessary for the purposes of the present case to consider the case where both parties to the marriage have died after the institution of the proceedings or the case where one or both of the parties to the marriage have died before the institution of proceedings.
Brennan J argued at 458:
It follows from what I have written that the validity of s. 79(8) would not be affected if it related to the continuation of proceedings after both spouses had died provided the proceedings were being carried on to obtain an order satisfying the moral obligations owed to their children. But it is clear from the context of s. 79(8) that "either party" should not be construed as both parties. The provisions of par. (a) show that the sub-section is intended to operate when there is but one "deceased party" by or against whose legal personal representative the proceedings may be continued.
At 462 Dawson J said:
The submission was made that s. 79(8) contemplates that proceedings may be continued after both parties to the marriage have died and that this demonstrates the lack of any requirement by the sub-section of a connexion between the proceedings which are continued and the marriage out of which they arose. I myself doubt whether, having regard to the matters to which I have referred, the situation would be any different if the provision were to be given an operation upon the death of both parties to the proceedings, but it is unnecessary to decide the point because it is clear to my mind that in speaking of the death of either party to the proceedings, s. 79(8) is not speaking of the death of both of them.
Thus pursuant to the reasoning in Fisher v Fisher (supra) it appears the original wording of s 79(8) only contemplated the continuation of property proceedings where one of the parties to the proceedings had died and not in the instance of both parties being deceased, although Dawson, Mason and Deane JJ did qualify that this issue did not require conclusive resolution in that instance. Counsel for the Intervenor conceded that had s 79(8) not been amended since Fisher v Fisher (supra), “[t]he Husband’s legal personal representative would certainly have a lion placed in his path”.
In 2005 both s 79(8) and s 79(1A) were amended by the Bankruptcy and Family Law Amendment Act 2005 (Cth). The amendment to s 79(8) was effected by Item 44 which provided:
Omit “either party to the proceedings”, substitute “a party to the marriage”.
As such, s 79(8) now provides:
Section 79
(8) Where, before property settlement proceedings are completed, a party to the marriage dies:
(a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;
(b) if the court is of the opinion:
(i) that it would have made an order with respect to property if the deceased party had not died; and
(ii) that it is still appropriate to make an order with respect to property;
the court may make such order as it considers appropriate with respect to:
(iii) any of the property of the parties to the marriage or either of them; or
(iv) any of the vested bankruptcy property in relation to a bankrupt party to the marriage; and
(c) an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
Counsel for the Husband submitted that the amendments have ensured that “s.79(8) now operates without limitation such as to avoid abatement in respect of both parties to a marriage”. The Intervenor relied on principles of statutory interpretation and adopted the same position.
Counsel for the Wife noted that s 79(8) “fails to speak of the death of both parties” and contended that “the death of both parties brought an end to the jurisdiction of the Court in s. 79(8) of the Act” with there no longer being any utility in continuing proceedings in light of the death of both parties.
The Interpretation of Section 79(8)
My view of the meaning of the section is firstly that it is unnecessary to go the Acts Interpretation Act 1901 (Cth) and the use of other material to understand the meaning of the section. Lest I be wrong in this determination I propose to use that method of interpreting the sub section as an alternate.
On the ordinary meaning of words I cannot see there is any appreciable or significant difference in terms of whether the words suggest a plural meaning rather than a singular meaning between the phrases “either party to the marriage” as opposed to “a party to the proceedings”. Applying the same tests used by the High Court in Fisher v Fisher (supra) it seems plain to me that the legislation is applicable to a situation where one of the parties has died but not both. Later in these reasons I refer to definitions taken from the Macquarie Dictionary and I here incorporate those sections in relation to my conclusion on the plain meaning of the words of section 79(8). It seems to me that if the case of Fisher v Fisher (supra) was heard today by the High Court based on the wording of the section which now exists there would be no departure from the earlier decision in relation to whether the section permits the proceedings to continue upon the demise of both parties to the marriage.
Assuming I was not to accept counsel for the Husband’s submission that s 79(8) as it now stands is free of “residual ambiguity” or counsel for the Intervenor’s submission that the introductory phrasing of s 79(8) “is not ambiguous or obscure” in the context of the present matter then I would have to proceed to call into aide the Acts Interpretation Act 1901 (Cth) to assist me in resolving the conflicting positions of the parties. In this regard s 15AB of the Acts Interpretation Act 1901 (Cth) is instructive. This provision is entitled “use of extrinsic material in the interpretation of an Act” and states:
Section 15AB
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
Pursuant to s 15AB(2) the extrinsic materials I may take into account include, but are not limited to, any explanatory memoranda relating to the amending bill containing the provision, the second reading speeches and any official record of debates in the Parliament.
Prior to invoking s 15AB I also note that s 15AB(1) is subject to s 15AB(3) which provides:
Section 15AB
(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and
(b) the need to avoid prolonging legal or other proceedings without compensating advantage.
I have heeded these matters in the following analysis.
The Intervenor submitted I have regard to Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416 where the High Court held at 420:
Section 15AB of the Acts Interpretation Act 1901 (Cth), as amended, does not permit recourse to that [second reading] speech for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurb or is unreasonable.
Thus it is apparent that the appropriate starting point in interpreting the amended section 79(8) is identifying the ordinary meaning of the phrasing “Where…a party to the marriage dies”.
In the context of the present dispute the gravamen of the debate concerned the meaning of “a party to the marriage” (emphasis added). In essence the Husband and the Intervenor contended that s 79(8) can be invoked where a party to a marriage dies, meaning one of the parties or both of the parties. In contrast the Wife’s position was that s 79(8) only applies where one party to the marriage has died and that when both parties have died the section is rendered inoperable.
In the Macquarie Dictionary (3rd edition) “a” is defined as the following:
a…used especially before nouns beginning with a consonant sound to mean: 1. some (indefinite singular referring to one individual of a class): a child; a house; a star. 2. another: he is a Cicero in eloquence. 3. one: two of a kind; a thousand. 4. any (a single): not a one. 5. indefinite plural: a few; a great many.
In my view this definition emphasises that “a” in its ordinary meaning is synonomous with “one” or “single”. Transporting this into the introductory phrasing of s 79(8), the provision could read “Where…one party to the marriage dies” or “Where one of the two parties to the marriage dies” (emphasis added). In my opinion this supports the position of the Wife. This view is re-enforced in light of the reasoning in Fisher v Fisher (supra). As discussed above, in that case when faced with the meaning of “either” in the original version of s 79(8) the majority of the High Court, in obiter, found that “either”, (which in my view is more conducive to ordinarily meaning ‘one or more’ than “a”), meant ‘one of two’ rather than ‘each of two’.
Nevertheless the crux of the Husband’s and the Intervenor’s argument is that the Bankruptcy and Family Law Amendment Act 2005 (Cth) by changing “either party” to “a party” removed this limitation of s 79(8) and made any analogy to Fisher v Fisher (supra) obsolete. Little support was provided for this proposition other than reference in the Husband’s submissions to Bridge v Mattis [1953] 52 AR (NSW) 49 in which it was held at 56-7:
When we see in Acts in pari materia by the very same Legislature words added to those used in a prior enactment, it would be setting at naught the clear intention of the Legislature to give the later enactment the construction placed on the earlier enactment. To do so would be to read out of the statute expressions which must be held to have been deliberately inserted to make the new Act differ from the old.
Bridge v Mattis (supra) has not been subjected to extensive judicial consideration and I do not consider that it stands for the proposition the Husband appeared to be relying on.
Counsel for the Intervenor, in his submissions, only put forth in support of the contended interpretation of s 79(8) that in its present form the provision “is not ambiguous or obscure or, in its ordinary meaning, does not lead to a result which is manifestly absurd or unreasonable”.
I am also permitted by s 15AB(1)(b)(i) to examine extrinsic materials to determine the meaning of a provision when it is ambiguous or obscure: see also FCT v Ryan (2000) 201 CLR 109 per Kirby J at 144; 725-6; Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 at [35].
Before moving to consider extrinsic material relevant to the 2005 amendment it is useful to look at the second reading speech which accompanied the 2003 amendment. The speech was delivered by Senator Gareth Evens on the 1st June 1983. The following short extract is helpful:
“In relation to property proceedings I also draw attention to the fact that the Family Law Amendment Bill as introduced by the previous Government contained an amendment to permit property proceedings to continue after the death of one of the parties to those proceedings” per Senator Gareth Evens at p 1099.
The following further extract from Senate Hansard 24 August 1983 is helpful:
The Bill will now permit a surviving spouse to continue a property settlement action where the other spouse dies before the determination of that action” per Senator Gareth Evans at p 184.
It seems to me that the extrinsic material supports the contention that the legislator never intended section 79(8) to be applicable in circumstances where both parties to a marriage had died. Further support for this proposition lies in the fact that no amendment of section 79(8) followed the decision of Fisher v Fisher in 1986.
Turning to the relevant extrinsic materials available in relation to the 2005 amendments, nothing in either the Explanatory Memorandum or the second reading speeches for the Bankruptcy and Family Law Amendment Act 2005 (Cth) offers any direct insight into whether, by the change in terminology, the Parliament intended for s 79(8) to apply not only to cases where one of the parties has died, but also to property proceedings where both parties are deceased. However I can determine the contemplated meaning of the amendment by reference to the following extracts of legislative commentary concerning the amending Act.
Page 13, para 71 of the Senate, Explanatory Memorandum (and p 12, para 73 of the House of Representatives, Revised Explanatory Memorandum which is in identical terms) is highly instructive for the present endeavour and states:
Item 46 proposes to add the concept of vested bankruptcy property to subsection 79(8) as being a category of property about which a court may make orders where one of the parties to a marriage dies before property settlement proceedings are completed. (emphasis added)
From this explanation it is clear that the legislature envisaged that s 79(8) be employed in property proceedings where one of the parties to the marriage dies. As this circumstance is explicitly raised and is the only context in which the provision is discussed, it would seem to me that the Parliament contemplated that the death of one party to the marriage is the only situation in which s 79(8) can be invoked. This is in accordance with the ordinary meaning of “a party” and confirms my interpretation above.
Pursuant to s15AB(1)(a) it is also necessary to take into account the context of Item 44 in the amending Act and the purpose or object underlying the Act. In this regard, the following extrinsic materials are instructive.
At p 10, para 57 of the House of Representatives, Revised Explanatory Memorandum in relation to the amendments to s 79(1A) the following is recorded:
Item 29 proposes to amend subsection 79(1A) to make clear that an order made under subsection (1) may be enforced after the death of a party to the marriage. It is appropriate to omit ‘party to the proceedings’ because, under these amendments, a bankruptcy trustee could be a party. The Bankruptcy Act deals with the position of a bankruptcy trustee who dies.
Similarly, p 13, para 70 of the Senate, Explanatory Memorandum reads in relation to s 79(8):
Item 44 proposes to amend subsection 79(8) to make clear that it applies to a party to a marriage, and not more generally to a party to the proceedings which could include a bankruptcy trustee.
These extracts indicate that the introductory phrasing to s 79(8) (and s 79(1A)) was only modified to clarify that in light of the amendments, which provided for bankruptcy trustees to become parties to property proceedings, s 79(8) could only be invoked in the event of the death of a party to the marriage rather than as a result of the death of any other party in the proceedings (such as a Trustee of a bankrupts former property) which the original wording of s 79(8) may have allowed. Understood in this context it thus appears that the amendments to s 79(8) were designed to ensure the clear and unambiguous operation of the new bankruptcy provisions and were intended to be incidental to the substantive amendments rather than to necessarily change the scope of s 79(8) discussed by the High Court in Fisher v Fisher(supra).
Pursuant to s 15AB(1)(a) my formulation of the ordinary meaning of “a party” in s 79(8) also takes into account the purpose or object underlying the Bankruptcy and Family Law Amendment Act 2005 (Cth) which at p 3, para 2 of the Senate, Explanatory Memorandum was said to be addressing and clarifying longstanding issues in the interaction between family law and bankruptcy. Furthermore, constructing s 79(8) in this way is also commensurate with s 15AA of the Acts Interpretation Act 1901 (Cth) which is titled “Regard to be had to purpose or object of Act” and provides:
Section 15AA
In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
Interpreting the amended s 79(8) as intending to ensure the clear and unambiguous operation of the new bankruptcy provisions and to be incidental to the substantive amendments rather than to necessarily change the scope of s 79(8) discussed by the High Court in Fisher v Fisher(supra), adheres to the purposive approach proscribed by s 15AA and takes into account the purpose or object underlying the amending Act in accordance with s 15AB(1)(a). I do not find that the interpretation of s 79(8) proposed for by the Husband and the Intervenor satisfies this approach.
Counsel for the Husband directed me to the case of Hughes v Kempe & Kempe & Bocampe (2005) FLC ¶93-237 in which Justice Morgan in applying the decision in Re Australian Federation of Construction Contractors; Ex parte Billing(supra) determined that the correct approach when the relevant explanatory memoranda does not support and indeed contradicts the ordinary meaning of legislative wording is to give the provision it’s ordinary meaning (unless those words are ambiguous or obscure or in their ordinary meaning lead to a result that is manifestly absurd or is unreasonable). However as the ordinary meaning I have given s 79(8) is congruent with the relevant Explanatory Memorandum this approach is unnecessary.
I was referred by counsel for the Wife to the decision of Werner-Zolotuchin v Public Trustee [2004] NSWSC 358 (30 April 2004) in which Master McLaughlin in relation to s 24(2) of the Property (Relationships) Act 1984 (NSW), which is comparable to the original version of s 79(8) of the Act, said at [55]-[56]:
In expressing the foregoing conclusion I have proceeded upon the basis that the provisions of s 24 of the Act (in particular subs (1) thereof) have application to the circumstance where, as here, not merely one of the parties to the relationship, but both the parties to the relationship, have died before the determination of the application under s 20 of the Act. However, I have very considerable doubt as to whether that is a correct construction of the relevant provisions of s 24. A literal construction of that section suggests that it applies only to the circumstance where only one of the parties has died before the determination of the application (the singular noun being used throughout: “either party”, “the deceased party”, “if the deceased party had not died”, “notwithstanding the death of the deceased party”, “the estate of the deceased party”).
However, as I have already observed, it is not necessary for me to reach a concluded view on whether s 24 has effect in the circumstance where, as here, both the parties to the relationship have died before the determination of the application.
Although concerning a different piece of legislation, I think similar reasoning can be applied to the amended s 79(8) which also only uses the singular noun “party” throughout (“the deceased party”, “a party to the proceedings”, “bankrupt party”), suggesting the section is referring to one party only. The plural “parties” is only adopted in s 79(8)(b)(iii) which states that “the court may make such order as it considers appropriate with respect to any of the property of the parties to the marriage or either of them”
I have noted counsel for the Intervenor’s objection to the relevance of Werner-Zolotuchin v Public Trustee(supra) in the present case, however find the case instructive in complimenting my above determination.
Conclusion
I conclude that the Court does not have jurisdiction to continue to hear the husbands application or the wife’s response. The death of both parties brings to an end the jurisdiction of the Court. The existence of section 79(8) provides for an exception to the general rule that property proceedings cannot be commenced where one of the parties has died. It appears to me the Legislation contemplates that in such circumstances the remaining party to the marriage would have a remedy elsewhere. The legislation as a whole contemplates that there must be an end to matrimonial proceedings involving property at some stage. There are time limits for commencing property proceedings following a divorce without the leave of the Court. It seems in those circumstances unusual that the legislature would contemplate to continuation of property proceedings where there is no live party to the marriage grounding the Court’s jurisdiction.
Consequent upon the above determination I would dismiss the application of the husband both in terms of the declaration sought by his legal personal representative and the application for final orders sought by the husband. The proceedings then come to an end and the intervenor Ms Charles can have no further interest in the proceedings.
Given the decision I have reached gives rise to a dismissal of the husband’s application for property orders under section 79 of the Act there is no need for me to further determine the submissions of the wifes’ estate namely that the same application should be dismissed on the basis of abuse of process.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.
Associate:
Date: 24 August 2007
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