Gundy v Eatts

Case [2013] QSC 297

SUPREME COURT OF QUEENSLAND

CITATION:

Gundy v Eatts [2013] QSC 297

PARTIES:

BRADLEY JOHN GUNDY
(applicant/respondent)
v
JOSLIN EATTS (as administrator of the estate of the late Doreen ("Dolly") Mary-Ann Eatts, deceased, late of Winton, Queensland)

(respondent/applicant)

FILE NO:

SC No 6631 of 2012

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 November 2013

DELIVERED AT:

Brisbane

HEARING DATES:

22 April 2013; 18 July 2013

JUDGE:

Atkinson J

ORDERS:

1.    Application to strike out originating application dismissed.

2.    The applicant in the originating process is given leave to amend the originating application.

3.    The administrator is restrained from distributing any of the estate of the late Doreen (“Dolly”) Mary-Ann Eatts until further order of the court.

4.    The administrator provide a copy of the sealed letters of administration to Bradley John Gundy.

5.    The administrator pay the applicant’s costs of and incidental to the application on a standard basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – ORIGINATING PROCESS – where the applicant in the originating process sought, inter alia, distribution of an estate on intestacy and family provision under Parts 3 and 4 of the Succession Act 1981 (Qld) – where the intestate is the applicant’s biological aunt – where the applicant asserts that the intestate and the applicant were in a parent-child relationship according to traditional Aboriginal custom – where the respondent submits that the applicant is not the child of the intestate – where the respondent contends that the whole of the originating application is an abuse of process – whether the originating application should be struck out

SUCCESSION – INTESTACY AND DISTRIBUTION ON INTESTACY – where the intestate is not survived by any spouse – where the intestate was survived by her son according to Aboriginal tradition – where the question of whether the applicant could be considered as the “child” or “issue” of the intestate is to be determined at trial

SUCCESSION – FAMILY PROVISION – ELIGIBLE APPLICANTS – CHILD – whether the applicant could fall within the definition of child – where the question of whether the applicant is entitled to apply for family provision is to be determined at trial

Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Qld), s 60
Acts Interpretation Act 1954 (Qld), s 2
Child Protection Act 1999 (Qld), s 8, s 11(3)
Legislative Standards Act 1992 (Qld), s 4
Status of Children Act 1978 (Qld), s 10(1)
Succession Act 1981 (Qld), s 35, s 36A, s 40, s 41
Uniform Civil Procedure Rules 1999 (Qld), r 16(e)

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, cited
Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd & Ors[2011] QCA 252, cited
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27, cited
Davis v The Commonwealth of Australia (1986) 61 ALJR 32; [1986] HCA 66

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AGLC
Gundy v Eatts [2013] QSC 297
Case
[2013] QSC 297
Decision Date

CaseChat Overview and Summary

Gundy v Eatts involved an application to the Supreme Court of Queensland by Bradley John Gundy, who sought to distribute the estate of his deceased aunt, Doreen ("Dolly") Mary-Ann Eatts, and claim family provision under the Succession Act 1981 (Qld). Gundy asserted that he and Eatts had a parent-child relationship according to traditional Aboriginal custom, which would make him her child for the purposes of the Act. The respondent, Eatts' son, argued that Gundy was not Eatts' child and that the application was an abuse of process. The court was required to decide whether Gundy's application should be struck out and if Gundy could be considered Eatts' child for the purposes of succession law.

The court found that the application should not be struck out as an abuse of process, but it did grant leave to amend the application to clarify Gundy's relationship with Eatts. The court held that the question of whether Gundy was Eatts' child under traditional Aboriginal custom was a matter for the trial. The court also restrained the administrator from distributing the estate until further order and directed the administrator to provide Gundy with a copy of the sealed letters of administration. Finally, the court ordered the administrator to pay Gundy's costs of and incidental to the application on a standard basis.

In summary, the Supreme Court of Queensland dismissed the application to strike out the originating application, allowed Gundy to amend his application, and restrained the administrator from distributing the estate until further order. The court also directed the administrator to provide Gundy with a copy of the sealed letters of administration and ordered the administrator to pay Gundy's costs of and incidental to the application on a standard basis. The questions of whether Gundy was Eatts' child under traditional Aboriginal custom and whether Gundy was entitled to family provision were reserved for the trial.

Orders

Orders of the court

1. Application to strike out originating application dismissed.

2. The applicant in the originating process is given leave to amend the originating application.

3. The administrator is restrained from distributing any of the estate of the late Doreen (“Dolly”) Mary-Ann Eatts until further order of the court.

4. The administrator provide a copy of the sealed letters of administration to Bradley John Gundy.

5. The administrator pay the applicant’s costs of and incidental to the application on a standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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