Green & Ors v Green

[1990] HCATrans 75

IN THE.HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl29 of 1989

B e t w e e n -

ROBERT WILLIAM GREEN

CECIL MILTON CREALY and

BERYL GREEN

Applicants

and

CHINTANA GREEN

Respondent

Application for special

leave to appeal

BRENNAN J
DEANE J

McHUGH J

Green

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 APRIL 1990, AT 10.38 AM

Copyright in the High Court of Australia

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MR D.B. MILNE, QC:  If Your Honours please, I appear with my

learned junior, MR G.F. BUTLER, for the applic.ants.

(instructed by Gregory J. Halpin)

MR S.J. MOTBEY: If it please the Court, I appear for the

respondent. (instructed by Jones Staff & Co)

BRENNAN J :	Mr Milne .
MR MILNE:	I hand to Your Honours three green folders with

material in it to which I will refer.

The application, Your Honours, comes from

the Court of Appeal Division of the Supreme Court

of New South Wales and arose in this way. There

was a suit cormnenced in equity by a lady who was
the plaintiff whose name was Chintana Green.

That suit named as defendants a son of a deceased person, Robert Green; the widow of that deceased person and another person named Crealy with whom

the Court has little concern with.

In that green folder, Your Honours will see

there is a document which I have nomined in the

right-hand corner as being document B. The quickest

way for rre to get at it is this: that Robert Green, Snr,
who died in 1981 was the father of the seven children

whose names appear in the third column. Beryl Green

was the lawful wife and is now the widow of

Robert Green, Snr. Robert Green, Snr, and Beryl

had two children, they being Robert William Green, Jnr,

and Baden Green. Robert William Green, Jnr, was the

third defendant.

The third lady whose nama appears on that sheet was

a lady named Margaret Ann Green. Margaret Ann Green

was the mother of three children of whom

Robert Green, Snr, was also the father, and she throughout the proceedings was referred to as being

the de facto wife of Robert Green, Snr. The fourth

person on that list is the plaintiff, Chintana Green.

She was the mother of two children, both of whom

Robert Green, Snr, was the father. And then that

sheet names the various children including

Robert William Green, Jnr, who was the first defendant.

The first defendant was a son; the second defendant

was Crealy and the third defendant was the wife.

Now, the suit, Your Honours, claimed relief

against those defendants by the plaintiff, the

allegation being that she, the plaintiff, was the -

and I use the words of the statement of claim -

"the de facto wife of Robert Green, Snr."

I turn from there to the blue book which is in

front of Your Honours and surmnarize, in perhaps the

best language available, at page 52 line 10:

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The deceased appears to have maintained

simultaneous domestic establishments with all

three women and their respective children.

In terms of division of his time he appears to have given preference to Margaret Green,

but it seems that he spent two nights a week,

regularly, with the respondent and, at least

according to her evidence, gave what she

regarded as a plausible explanation of his

absences. Presumably, over a number of years,

he managed to achieve the same result with the

other women. This is consistent with his

apparent success as a used car salesman.

Well, that was the story of the case.

Now, Your Honours, the application was based on what has now become familiar in these courts, in

this Court and State courts with people in such a

relationship claiming part of the estate, and there

was an enormous amount of evidence given. And the

judge at first instance made some orders which were

partly favourable to me and partly unfavourable to me.

From that there was an appeal by my clients and the

result was that we lost that which we gained in front

of the primary judge.and it is from that decision from

which leave is sought.

BRENNAN J:  What are therespective interests of your clients

in the subject property, Mr Milne?

MR MILNE: Well, Your Honour, Mrs Green, Beryl Green, is the

lawful wife; the third defendant is the lawful son.

BRENNAN J:	But what are their interests in the property?
MR MILNE:	Your Honour, they would claim under his estate.
BRENNAN J:	As on an intestacy?
MR MILNE:	As on an intestacy.
McHUGH J: The other applicant, Mr Crealy, is the registered

proprietor?

MR MILNE:  He is the registered proprietor of a piece of land,

yes. That is the interest in it.

BRENNAN J: Yes.

MR MILNE:· Now, Your Honours, leave is sought and is confined

to one point and one point only. If leave is

granted, other matters such as the matters which

have been discussed in a number of cases in this

Court and which were raised in front of the primary

judge and in front of the Court of Appeal will be

seeked to be reagitated in this Court. I have,

Your Honours, included in that green bundle, the

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submissions which were made to the Court of Appeal

by the present applicant and they appear as

documents F, G, H, I, J and K.	I do not propose
to take Your Honours to those.	So far as the defence

which was raised. of public policy and the question

of equity for a so-called de facto wife, this point

was taken. It was submitted, "That as a matter of

law one cannot have simultaneously a wife and a

de facto wife." It was submitted that one cannot

have a wife and two so-called de facto wives. The

submission was that the law would not take

cognizance of and would not lend aid to a polygamous

relationship and it would be against public policy to

do so and that an equity court would not lend its aid

in support of such a claim. Now, that was the point

that was taken below and that is the point which is

taken here.

That point was dealt with in this way - and

if Your Honours will turn to page 50 of the

application book where the Chief Justice says at

line 12:

This appeal arises out of a claim by

one of the parties to a de facto relationship

which has been terminated by the death of the

other party, that by reason of equitable

principles she has a proprietary interest in

certain real estate. The need to invoke such

principles arises because the death occurred

about a year before the enactment of the

FAMILY PROVISION ACT 1982 which, had it applied,

would have given the Court discretionary power

to make provision for the surviving party out

of assets owned or controlled by the deceased.

His Honour was saying that the plaintiff fell within

a certain definition in that Act which would have

given her rights upon his death.

He dealt, again, with the same matter at page 71

of the application book, line 22:  There is one final argument that was

urged on behalf of the appellant that should

be mentioned. It was submitted that it would

be contrary to public policy to recognise

and give effect to the respondent's claim,

apprently because of the nature of the

relationship between the respondent and the

deceased.

There are two answers to that submission.

Tbe first lies in a matter noted at the cormnencement of this judgment -

and His Honour was referring to his first paragraph -

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that is to say, that there is now in this
State legislation which recognises

relationships of the kind here in question

and empowers the court to enforce rights

arising out of such relationships. It does

not seem to me that it is open to this Court

to declare that the public policy of New

South Wales requires that such relationships

should not be recognised or made the basis of

legal entitlement.

The second answer lies in a consideration

mentioned by Cooke Jin -

a New Zealand case, and part of His Honour the

New Zealand judge's reasoning is set forth.

His Honour the New Zealand judge was there speaking, and I quote from line 12:

"While not alone enough to justify imposing

a constructive trust, a stable de facto

union provides a background in which one

will tend to arise much more naturally than

as between strangers."

Now, in our respectful submission, what His Honour

the Chief Justice said there and His Honour

Mr Justice Priestley agreed with him amounts to this: that a relationship such as this where a man has, in

effect, three women with whom he is living can fairly

and properly be said to be having a bona fide domestic

relationship with each of the three because those
words, "a bona fide relationship" comes from the

section to which I am about to refer Your Honours,

and I take Your Honours irmnediately to a copy of the

Act which I have included in Your Honours' green

folders and which my junior has successfully taken out

of mine. There is a definition section in there

which speaks of "eligible person". It is in section 6.

Do Your Honours see the definition of "eligible person"?

BRENNAN J: Of which Act is it?

MR MILNE: It is the FAMILY PROVISION ACT, the Act to which

His Honour referred.

"elibible person", in relation to a deceased

person, means -

(a)	a person who -
(i) was the wife or husband of the deceased

person at the time of the deceased

person's death;

(ii)   where the deceased person was a man, was a woman who, at the time of his

death, was living with the deceased

person as his wife on a bona fide
domestic basis; or

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and I need not both Your Honours with (iii) or
(b), or (c) but I draw Your Honours' attention to

(d):

a person -

(i)   who was, at any particular time,

wholly or partly dependent upon the
deceased person; and

(ii)   who is a grandchild of the deceased

person or was, at that particular time

or at any other time, a member of a

household of which the deceased person

was a member.

Now, Your Honours, the submissions which we make

are that there would be nothing in this case which could

lead to a finding that the plaitiff in this case

fell within that section and that His Honour

the Chief Justice was therefore wrong when he, by

inference, said that she would have been entitled

to claim and would have succeeded in claiming under

the provisions of that Act. But the case, that

is the decision of the Court of Appeal, from which

I have just read stands today as an authority for

the proposition that any person who has a relationship,

such as Chintana Green had with this deceased,

would be entitled to successfully proceed under the

FAMILY PROVISION	ACT 1982 and, in our respectful
submission, that is just not right.	Now, Your Honours,
I have included - - -

BRENNAN J:  But that only takes you half-way, does it not,

Mr Milne? There are two grounds which the Chief Justice

assigns for - - -

MR MILNE:  Your Honour, it only takes me half-way. That is

perfectly correct, Your Honour, it does only take

me half-way. The other part of the half-way is

encompassed in what Mr Justice Cooke said in the

New Zealand case, that principle , which I concede

to be a correct principle, but that principle

also_ is based upon there being a bona fide de facto

relationship.

BRENNAN J: Those are not Mr Justice Cooke's words, are they?

MR MILNE:  Yes, they are his words. They are Mr Justice Cooke's

words, Your Honour, as Your Honour will see from

page 72 of the application book.and I have read it

to Your Honours:

"While not alone enough to justify imposing

a constructive trust, a stable de facto

union provides a background in which one

will tend to arise much more naturally than

as between strangers."

BRENNAN J:  Now, does that not really indicate that what

Mr Justice Cooke is saying is that this is a background

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in which one looks to discover whether, for the

purposes of the argument in favour of constructive

trust, any detriment has been suffered by the person

seeking to raise the constructive trust?

MR MILNE:  Yes, I think that is correct, Your Honour.

BRENNAN J: Well then, you would have to go back, would you

not, to the reliance which the Chief Justice placed

on GRANT V EDWARDS at page 70 - - -

MR MILNE:	I think that is correct, Your Honour.
BRENNAN J:	- - -in order to say whether or not:

once it has been shown that there was a

common· intention that the claimant should

have an interest ..... any act done by her

to her detriment relating to the joint

lives of the parties is, in my judgment,

sufficient detriment to qualify.

MR MILNE:  Your Honour, I have no question about the fact

that there I have problems, if I get leave, about

arguing other aspects of the case. I do not shrink

from that, and they are matters to which I had not

proposed on this leave application to take

Your Honours' time.

BRENNAN J:  But do you not face this difficulty that if we

were to grant leave in order to discuss the question

of the construction of the FAMILY PROVISION ACT,

that that question may never arise if the case
should go off on the second of the approaches which

the Chief Justice took?

MR MILNE:  Your Honour, that is, I concede, a possibility.

That is a possibility.

BRENNAN J: Then can this case be a suitable vehicle for

arguing the point which you seek to entertain?

MR MILNE:  I would submit so, Your Honour. This

case stands, at the moment, as a clear proposition

for something which, I submit with some degree of

confidence, is entirely wrong and it remains on the

books of this State and ought to be corrected and

it has wider repercussions as I shall draw

Your Honours' attention to in a moment. They are

these - and I have included in this folder, only
for the purpose of demonstrating to Your Honours

how wide this problem is, some pages from a service which I understand is called the Family Law Service

but if Your Honours will look at that, under the

heading<> "Introduction", Your Honours will see

that the definition section in the FAMILY PROVISION

ACT 1982 of New South Wales has been repeated in a

number of other Acts in this State. It also appears

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in much the same terms in a Commonwealth Act, namely,

the SOCIAL SECURITY ACT. There have been some

decisions, most of which do not touch upon the
question that I have been discussing with Your Honours,

but two of which do, and those two are to be found,

if Your Honours will turn to the page which at the

top has got the number 2,901. It is a number of pages on, Your Honours, about six pages on. The

heading is "Exclusive relationship". They are notes,

Your Honours, just of two cases which have touched upon or which, by inference, you could say touched upon this question. One was in New South Wales and the other was

in South Australia. And it is conceded by me that

by inference, from the facts of those cases and the

findings, it can be said, against the submission that

I am making, that one may, at the same time, have a

lawful wife.and a de facto wife.

Now, Your Honours, I do not wish Your Honours

to go to it. I draw your attention to it as is my

duty to draw your attention to it and I draw

Your Honours' attention to the matters that are raised in that document because it is a matter

more widespread and of more general public interest

thav! the four corners of this somewhat unusual

set of facts.	They are the submissions that I make,
Your Honours.

BRENNAN J:  Thank you, Mr Milne. We need not trouble you,

Mr Motbey.

The argument in favour of the proposition which

the applicant wishes to agitate as to the proper

construction of the definition of "elis.sible person"

in the FAMILY PROVISION ACT has been lncidly put in

the argument of Mr Milne. However, for reasons which

were discussed with Mr Milne in the course of his

argument, this does not appear to be a suitable case

in which th·at question might fall for determination

by this Court, were special leave to be granted.

Accordingly, special leave will be refused.

MR MILNE: If Your Honour pleases.
MR MOTBEY:	We seek costs, if Your Honour pleases.

BRENNAN J: With costs, Mr Motbey.

AT 11.03 AM THE MATTER WAS ADJOURNED SINE DIE

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