Hastings v Hastings

[2010] NSWCA 197

New South Wales

Court of Appeal

CITATION:	HASTINGS v HASTINGS [2010] NSWCA 197 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	17 June 2010
JUDGMENT DATE:	12 August 2010
JUDGMENT OF:	McColl JA at 1; Basten JA at 2; Handley AJA at 42
DECISION:	(1) Appeal dismissed. (2) Appellant to pay the respondent's costs of the appeal other than those of the respondent’s application for security for costs determined by Macfarlan JA on 22 September 2009.
CATCHWORDS:	APPEAL – civil – whether provision "ought" be made from the deceased's estate for "maintenance, education or advancement in life" for adult, able-bodied children – Family Provision Act 1982 (NSW) ss 7, 9 - APPEAL – civil – whether there is a moral or natural obligation to provide for adult, able-bodied children, sufficient to deprive parent of the unfetted right of testamentary disposition – ss 7, 9 - STATUTORY INTERPRETATION – principles – appellate review principles apply in relation to the test of adequacy of provision - WORDS AND PHRASES – "proper", "adequate" – Family Provision Act 1982 (NSW), s 9
LEGISLATION CITED:	Family Provision Act 1982 (NSW), ss 6, 7, 9 Succession Act 2006 (NSW), Ch 3, Sch 1, Pt 3, cl 11 Succession Amendment (Family Provision) Act 2008 (NSW), s 5 Testator’s Family Maintenance Act 1916 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Bosch v Perpetual Trustee Co [1938] AC 463 Clifford v Mayr [2010] NSWCA 6 Goodman v Windeyer [1980] HCA 31; 144 CLR 490 House v The King [1936] HCA 40; 55 CLR 499 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 Singer v Berghouse [1994] HCA 40, 181 CLR 201 Stott v Cook (1960) 33 ALJR 447 Vigolo v Bostin [2005] HCA 11; 221 CLR 191
PARTIES:	Phillip Hastings - Appellant John William Hastings - Respondent
FILE NUMBER(S):	CA 2009/298191
COUNSEL:	C M Simpson SC/K F Morrissey – Appellant L Ellison SC - Respondent
SOLICITORS:	Coode & Cory - Appellant Thomas McDarra & Co - Respondent
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 2991/08
LOWER COURT JUDICIAL OFFICER:	White J
LOWER COURT DATE OF DECISION:	9 December 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Hastings v Hastings [2008] NSWSC 1310

CA 2009/298191

McCOLL JA
BASTEN JA
HANDLEY AJA

12 August 2010

Phillip HASTINGS v John William HASTINGS

Headnote

Phillip Hastings, the appellant, brought a claim under the Family Provision Act 1982 (NSW) ("the Act"), seeking provision in the amount of $140,000 from the estate of his late mother. The deceased left a will by which she appointed her other living son, John William Hastings, the respondent, as executor and sole beneficiary. The trial judge, White J, dismissed the appellant's claim for a combination of reasons including the appellant's limited contact with the deceased; the appellant's criminal conduct and character having brought shame on the family; and the appellant's financial needs being due to his criminal conduct, which resulted in forfeiture of his property: Hastings v Hastings [2008] NSWSC 1310.

Mr Phillip Hastings appealed to this Court on the basis that the primary judge had made erroneous findings of fact and that the decision was unreasonable.

The issues for determination on appeal were:

(i) what were the relevant principles to be applied in this case;

(ii) whether the trial judge erred in failing to recognise that there were causes of the appellant's present impecuniosity, other than the confiscation of his property arising from his criminal conduct, including his diminished earning capacity;

(iii) whether the trial judge erred in finding that the deceased was embarrassed by newspaper articles published about the appellant;

(iv) whether the trial judge erred in failing to make a modest provision as sought by the appellant and exercised the discretion in a manner which was unreasonably or plainly unjust.

The Court held, dismissing the appeal:

(per Basten JA, McColl JA and Handley AJA agreeing)

In relation to (i)

1. Difficult questions arise as to whether an adult and able-bodied son or daughter is a person for whom provision "ought" be made from the estate for his or her "maintenance, education or advancement in life" in accordance with section 7 of the Act. The court is required not to make provision unless satisfied that such provision as has been made, if any, is "inadequate for the proper maintenance, education and advancement in life of the eligible person" in accordance with section 9(2) of the Act. The term "proper" supports an assessment that more may be required than that which is sufficient as a matter of bare necessity to avoid penury. Nevertheless, unless an adult child can establish that his or her resources are "inadequate", it is unlikely that he or she will succeed: [7]-[8].

Hughes v National Trustee, Executors and Agency Co of Australasia Ltd [1979] HCA 2; 143 CLR 134, considered.
Goodman v Windeyer [1980] HCA 31; 144 CLR 490; Bosch v Perpetual Trustee Co [1938] AC 463 referred to.

2. The test of adequacy of provision is made "at the time the court is determining whether or not to make such an order" in accordance with section 9(2) of the Act. If inadequacy of provision is established, the Court is vested with a discretion to order that provision be made from the estate. It is at that point, the factors set out in section 9(3) become relevant, although in some circumstances they will also be relevant at the first stage of inquiry: [9]-[10].

Hughes v National Trustee, Executors and Agency Co of Australasia Ltd [1979] HCA 2; 143 CLR 134, distinguished.
Singer v Berghouse [1994] HCA 40, 181 CLR 201 referred to.

3. The principles that govern appellate review of discretionary decisions apply in relation to the test of adequacy of provision. It follows that the task for the appellant was to establish some error of principle in accordance with House v The King [1936] HCA 40; 55 CLR 499: [1], [12]-[16].

Hughes v National Trustee, Executors and Agency Co of Australasia Ltd [1979] HCA 2; 143 CLR 134; Hunter v Hunter (1987) 8 NSWLR 573; Clifford v Mayr [2010] 6 NSWCA 6 referred to.
Singer v Berghouse [1994] HCA 40, 181 CLR 201 applied.

4. Whether there is a moral or natural obligation to provide for adult, able-bodied children, sufficient to deprive parent of the unfettered right of testamentary disposition, is debatable. Consequently, a range of views would be available to judges called upon to administer the legislation: [17]-[20].

Goodman v Windeyer [1980] HCA 31; 144 CLR 490; Vigolo v Bostin [2005] HCA 11; 221 CLR 191; Stott v Cook (1960) 33 ALJR 447, referred to.

In relation to (ii)

5. The appellant challenged the weight given to the assessment of his needs by the trial judge. No specific error by the trial judge in failing to take into account material factors on which he made findings of primary fact was shown by the appellant: [26]-[30].

In relation to (iii)

6. There was evidence that the deceased had expressed her concern as to the local reaction to stories in the newspaper. Those comments alone did not provide a reasonable justification for the deceased's decision not to leave any part of her estate to the appellant. However, it is clear that the deceased also knew of the appellant's criminal activity and his arrest in Fiji, which ultimately led to the appellant's criminal conviction and imprisonment in the United States. Those matters did not require wide publicity in order to bring shame on the deceased, as the deceased may have suffered shame flowing from her own knowledge of the appellant's conduct: [31]-[37].

7. There was no error on the part of the trial judge in accepting that the deceased felt such shame and that it was a legitimate factor to be taken into account in assessing the appellant's claim: [38].

In relation to (iv)

8. This appeal ground did no more than assert disagreement with the outcome at trial. The outcome demonstrates no misapplication of principle nor is it so unreasonable as to give rise to an inference that there must have been a misapplication of principle: [39]-[40].

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165, referred to.

CA 2009/298191

McCOLL JA
BASTEN JA
HANDLEY AJA

12 August 2010

Phillip HASTINGS v John William HASTINGS

Judgment

1 McCOLL JA: I agree generally with Basten JA. As Campbell JA (with whom Young JA agreed and Handley AJA generally agreed) concluded in Clifford v Mayr [2010] NSWCA 6 (at [74]) after reviewing relevant decisions, the “correctness of the judge’s decision on the jurisdictional question must be reviewed in accordance with the standards applicable to discretionary judgments”. The appellant did not establish any error of the nature of that required by House v The King (1936) 55 CLR 499 (at 504-5) which would warrant this Court’s intervention. I agree with the orders Basten JA proposes.

2 BASTEN JA: This appeal concerns a claim under the Family Provision Act 1982 (NSW), brought by an adult son seeking a payment from the estate of his deceased mother. The value of the estate is in the order of $700,000 (disregarding costs of these proceedings). The deceased left a will by which she appointed her other living son (the respondent) as executor and sole beneficiary. The appellant seeks provision in an amount of $140,000.

3 Despite the limited amount of the claim, the trial was heard by White J in the Equity Division: Hastings v Hastings [2008] NSWSC 1310. His Honour dismissed the claim for a combination of reasons, which may be summarised as (a) the claimant’s limited contact with the deceased; (b) his criminal conduct and character having brought shame on the family; and (c) his financial needs being due to his criminal conduct, which resulted in forfeiture of his property.

Principles to be applied

4 The Family Provision Act 1982 was repealed by the Succession Amendment (Family Provision) Act 2008 (NSW), s 5, which commenced on 1 March 2009. The legislation inserted a new Ch 3 in the Succession Act 2006 (NSW), which applies in relation to the estate of a person who dies on or after the commencement of the new provision: Succession Act, Schedule 1, Pt 3, cl 11. The deceased having died on 29 February 2008, the Family Provision Act, as applied by the primary judge, continues to apply.

5 The key concepts in the Family Provision Act were succinctly identified by Gleeson CJ in Vigolo v Bostin [2005] HCA 11; 221 CLR 191 at [4], discussing similar language in the Western Australian Act:

“The power of a court to make an order under the Act is enlivened by the formation of an opinion that the disposition of the deceased's estate effected by will, or the law relating to intestacy, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of [an eligible person]. The court is empowered, at its discretion, to order that such provision as the court thinks fit is made out of the estate of the deceased for that purpose.”

6 The definition of “eligible person” in s 6(1) encompasses spouses and those living in a domestic relationship with the deceased person, children, former spouses and dependants who were grandchildren or otherwise members of the household of the deceased person at a relevant time. The appellant is an eligible person, because he is the son of the deceased.

7 In the case of a child, it is not necessary that the person be a dependant at the time of the deceased’s death in order to be an eligible person. It may be accepted that a child will generally have some claim on the estate of the deceased, despite lack of dependency. Where a son or daughter is adult and able-bodied, difficult questions can arise as to whether the person is someone for whom provision “ought” be made from the estate for his or her “maintenance, education or advancement in life”: s 7. The court is required not to make provision unless satisfied that such provision as has been made (if any) is “inadequate for the proper maintenance, education and advancement in life of the eligible person”: s 9(2).

8 The term “proper” supports an assessment that more may be required than that which is sufficient as a matter of bare necessity to avoid penury: Goodman v Windeyer [1980] HCA 31; 144 CLR 490 at 496-497 (Gibbs J), citing Bosch v Perpetual Trustee Co [1938] AC 463 at 476. Nevertheless, unless an adult child can establish that his or her resources are indeed “inadequate” in the relevant sense, it seems unlikely that he or she will succeed. As explained by Gibbs J in Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; 143 CLR 134 at 147:

“It is well settled that these general principles apply to the case of an adult son as well as to other cases. The age of an applicant is however material and if a son is mature, able-bodied and capable of supporting himself he may in those circumstances be in no need of maintenance or support.”

9 One further aspect of the statutory provision needs to be borne in mind: although under earlier legislation, it was said that the test of adequacy of provision was to be applied “on all the facts that existed at the date of the death of the testator, whether the testator knew of them or not, and all the eventualities that might at that date reasonably have been foreseen by a testator who knew the facts” (Gibbs J in Hughes at 148), s 9 requires that the assessment be made “at the time the court is determining whether or not to make such an order”: s 9(2).

10 If the inadequacy of provision is established, the Court is vested with a discretion to order that provision (or further provision) be made from the estate. At that point, sometimes described as the second stage of the inquiry (see Singer v Berghouse [1994] HCA 40, 181 CLR 201), the factors set out in s 9(3) become relevant, although at least in some circumstances they will also be relevant at the first stage of inquiry, which itself requires consideration of “the totality of the relationship between the applicant and the deceased”, as well as the needs of the applicant: Singer, p 210. (Whether that would be so in every case is unclear.)

11 The structure of equivalent provisions around the country is not identical, but the structure of the Family Provision Act, s 9, which was the subject of consideration in Singer, indicates the basis for the two stage process, although the test of inadequacy and of proper provision are not directly conditioned by the consideration of factors set out in sub-s (3). Nevertheless, it is clear on the basis of Singer that similar considerations will apply at the first stage and accordingly his Honour was not in error in determining the matter on the basis of a consideration of the first stage of the inquiry.

12 The next question concerns the proper approach for this Court to take on the appeal. In Hughes, the High Court considered an appeal in relation to the Victorian law, as then in force, in a matter in which the trial judge had dismissed an application on the basis that the applicant did not have any “moral claim” to provision and that he was disentitled to the benefit of the section, by reason of his conduct. Murphy J noted (at p 158):

“The Full Court of the Supreme Court of Victoria … dismissed his appeal … and dealt with it as if it were a discretionary judgment. It was not a discretionary judgment; it was based on a determination of matters of fact or mixed fact and law (that is, whether the appellant was left without adequate provision, whether he established a moral claim to provision, and whether his conduct disentitled him to any provision) and cannot be regarded as a discretionary judgment unless the concept is extended to encompass almost all judgments. Dunn J. did not reach the stage of exercising any discretion under s 91. It is unnecessary therefore, to consider the nature of a true appeal from a judgment which involves an element of discretion except to observe that the concept of discretionary judgments must not be allowed to undermine the appellate process.”

13 In Singer, Mason CJ, Deane and McHugh JJ noted (referring to Hughes, but not specifically to the judgment of Murphy J) that the question at the first stage was “strictly one of fact, notwithstanding that it involves the exercise of value judgments”: p 210. Their Honours accepted that there was an element of artificiality in separating the exercise into two stages and continued (at 211):

“Strictly speaking, however, the jurisdictional question, though it involves the making of value judgments, is a question of objective fact to be determined by the judge at the date of hearing. This conclusion may have consequences in terms of what an appellant needs to demonstrate on appeal, an issue that will be considered shortly.”

14 Their Honours returned to the issue on the following page, noting that in this Court, Kirby P had held that “the principles that govern appellate review of discretionary decisions should apply” in relation to the first stage, known as the “jurisdictional question”: referring to Hunter v Hunter (1987) 8 NSWLR 573 at 576. The joint judgment in Singer continued:

“In this respect we should express our agreement with the following comments of [Kirby P] in Golosky v Golosky [[1993] NSWCA 111, URJ, p 8 (45)]:
‘Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged.’”

15 This Court has accepted that there is a special rule to be applied in relation to evaluative judgments in such matters and applied Singer: see, eg, Clifford v Mayr [2010] NSWCA 6 at [67]-[76] (Campbell JA, Young JA agreeing and Handley AJA agreeing generally).

16 It follows that the task for the appellant in the present case was to establish some error of principle in accordance with House v The King [1936] HCA 40; 55 CLR 499 at 505.

17 As noted by Gibbs J (Stephen and Mason JJ agreeing) in Goodman v Windeyer [1980] HCA 31; 144 CLR 490 at 502:

“[T]he words ‘adequate’ and ‘proper’ are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards.”

18 This test is by no means easy to articulate and apply. After referring to the second reading speech of the Attorney-General introducing the Bill which became the Testator’s Family Maintenance Act 1916 (NSW) Gleeson CJ noted in Vigolo at [10]:

“The references to the rights of a wife or a child to maintenance after the death of a husband or father were not references to legal rights. The necessity for the legislation arose from the absence of such legal rights. The statute did not confer new rights of succession. It did not respond to the mischief identified by re-instating a right akin to dower, or otherwise by creating legal rights of inheritance. It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification. The statute gave courts a discretionary power to make orders which would have the legal effect of altering the provisions of wills. …

The mischief to which the original legislation was directed was the possibility of unjust exercise of testamentary capacity resulting in inadequate provision for a family member, typically a widow.”

19 Limited to such clear cases, the purpose and effect of the legislation may be readily understood. When a claim is made by an adult able-bodied son in respect of the estate of his mother, the identification of the relevant standard is more difficult. As explained by Windeyer J in Stott v Cook (1960) 33 ALJR 447 at 455 (in a passage quoted by Gummow and Hayne JJ in Vigolo at [60]:

"Questions of duty, when not determinable by the fixed criteria of law, become questions of casuistry. Standards and principles may be stated. But their application to a particular case can seldom be beyond all debate even when all the facts are known."

20 Whether there is any generally held social view as to the existence of a moral or natural obligation to adult able-bodied children, sufficient to deprive a parent of the unfettered right of testamentary disposition, may be open to doubt. Almost certainly views would differ. There can, in such circumstances, only be a legitimate range of views available to judges called upon to administer the legislation. Further, because the standard cannot be identified with precision, the application of an appropriate standard to particular circumstances may also give rise to a range of legitimate outcomes.

Approach of primary judge

21 Pursuant to s 9(3)(b), the primary judge was entitled to take into account “the character and conduct of the eligible person”. Under an earlier legislative scheme, misconduct and evidence of bad character were colloquially referred to as “disentitling” conditions. Although they used to be identified as providing a legitimate basis for refusing to order provision, it was never entirely correct to describe them as “disentitling” factors. Further, counsel for the appellant fairly objected to the use of that language in respect of the conduct of the appellant, the Family Provision Act containing no express term to that effect. Nevertheless, the appellant’s criminal conduct, which his Honour held brought shame on the deceased and the family, together with his very slight contact with his mother during his adult life, were factors legitimately taken into account in denying an order for provision: at [43]. Although his Honour recognised that the appellant had financial needs, he found that his lack of resources was due to his own fault, namely his criminal conduct which led to the confiscation of his property in the United States: at [39]. This factor did not mean that his financial need could be disregarded, but it was a factor which could properly be taken into account as diminishing, if not removing, financial need as a basis for a claim on the estate.

Challenges to findings of fact

22 The best case which could be made for the appellant was that the power to order provision was engaged, because his mother had made no provision at all for him in her will (having given the whole of her estate to his brother) and his own financial circumstances demonstrated that he was without adequate or proper provision in respect of his own maintenance and advancement in life. However, even if that were considered the only available conclusion (consistently with Singer) the factors relied upon to deny a favourable exercise of the discretion remained and the appeal would therefore fail.

23 The appellant more particularly attacked the judgment below on the basis that the primary judge had made erroneous findings of fact, which may be summarised as follows:

(1) in finding that the appellant’s “present impecuniosity” was a direct result of the confiscation of his property arising from his criminal conduct, and in failing to recognise that there were other causes of that state of affairs;

(2) in failing to take into account the appellant’s diminished future earning capacity, and

(3) in finding that the deceased was embarrassed by newspaper articles published in 1990 and 1991 with respect to the appellant.

24 A further ground, as amended, asserted that the primary judge must have acted on a wrong principle in failing to make a modest provision as sought by the appellant, or, alternatively, exercised the discretion in a manner which was unreasonable or plainly unjust.

25 In relation to the first ground, the appellant accepted that he had no assets consequent upon the forfeiture of his property, upon his release from jail in July 2005. Thereafter, he set up a business in Mexico but, after returning to Australia in July 2007, to see his mother, when advised of her illness, he was unable to return to Mexico and lost the business. Thereafter, he appears to have investigated a business opportunity in Thailand and on the Gold Coast.

26 It may be assumed for present purposes that the loss of the business opportunity in Mexico was a misfortune, although, given his past criminal history, the expectation of continuing such a business may have been qualified. The gravamen of the first complaint depends, at least in part, on the second complaint.

27 In relation to the second ground, by the date of the deceased’s death, the appellant suffered from a condition known as “claudication” which involved a significant diminution in his earning capacity. The trip to Thailand and the possibility of commencing a business on the Gold Coast appear not to have been affected by his disability. His Honour was conscious of the disability, finding at [26]:

“The plaintiff has significant health problems, most particularly with his back. These prevent him from taking employment requiring physical labour which places strain on his back.”

28 No serious challenge was made in respect of this conclusion: rather, the complaint was that it was given no weight, or entirely inadequate weight, in the assessment of his needs. Thus, it was submitted, whatever may have been true in respect of the confiscation of his pre-2005 assets, his continuing impecuniosity at the time of his mother’s death (and the date of the hearing) were not the result of fault on his part, but of misfortune and a physical disability. Thus, when his Honour returned to the question of present impecuniosity, it was submitted, he erred when he stated at [39]:

“Moreover, the plaintiff’s present impecuniosity is the direct result of the confiscation of his property by United States authorities. That confiscation is the direct result of his crimes. That is so even if, as the plaintiff said, the property confiscated was not the proceeds of crime.”

29 The failure properly to take into account the misfortunes, both in Mexico and as constituted by his physical disability, was confirmed, indirectly, by references to the fact that refusing his claim would mean that “he is not relieved from the financial predicament to which his own crimes have brought him” (at [42]) and the statement that he does not have a legitimate claim, in part, because “his financial needs are due to his own fault”: at [43]. On the other hand, his Honour continued at [43]:

“That is so notwithstanding his impecuniosity, his health problems and his belated care for his mother at the very end of her life. I do not think sensible members of the community would feel that in [all the?] circumstances the plaintiff should have been provided for in the will even had the testatrix known of the plaintiff’s current financial circumstances and his current state of health.”

30 In the end result, the complaint is no more than one concerning the balancing exercise undertaken by the primary judge. No specific error has been shown in the sense that he failed to take into account material factors on which he had made favourable findings of primary fact.

31 The third ground concerned the finding that the deceased was embarrassed by newspaper articles published about the appellant’s incarceration and treatment in jail, in respect of matters of which he was acquitted.

32 There was evidence in this respect that the deceased had expressed her concern as to the local reaction to the stories in the newspaper. On a fair reading of the articles, it was no doubt open to the reasonable reader to conclude that, far from bringing shame upon his family, the appellant had been mistreated and deserved sympathy, as did his family. His Honour should, it was submitted, have found that any shame felt by the deceased was either misplaced or must have been trivial in extent.

33 Properly understood, the deceased’s comments with respect to the newspaper articles and the public reception of them may have constituted an element in her subjective determination not to leave any part of her estate to the appellant, but did not provide a reasonable justification for that course.

34 The evidence upon which his Honour made his finding was twofold. First, the background circumstances were identified as follows:

“[6] In 1988 he was arrested when on holiday in Mexico on charges of drug importation. He remained in custody for three and a half years. He says he was tortured whilst in custody and was ultimately acquitted. There is hearsay evidence, not objected to, that the plaintiff’s release in 1991 was procured by bribes provided by his brother Robert.
[7] Newspaper articles were published in Australia in 1990 and 1991 in relation to the plaintiff and his alleged ill treatment. The newspaper articles said that he had been arrested on drug-running charges. At the time, the deceased thought that people avoided her or gossipped about the charges.”

35 Secondly, the deceased’s solicitor made a contemporaneous file note of a conference with the deceased on 9 February 2005 when he received instructions for a new will, following the death of the deceased’s son Robert. The instructions included the following notes under the heading “Phillip to get nothing”:

“2. Re: Phillip – she hears from him only every couple of years now.
– that he disappeared for about 20 years at least (between 1968 and 1988)
– he rang her out of the blue about 15/20 years ago – his lifestyle has been ‘fast’ – ‘rich & then in jail then rich again.’ He even dragged his brother Robert into it – all the stress killed Robert (heart attack)
– she believes he sold drugs. He’s been in the paper – charged with drug smuggling – very embarrassing for her – her name was even printed ….”

36 His Honour referred, in the course of his assessment, to a case involving a plaintiff who had been convicted of murdering her husband. After referring to the change in the attitude of the deceased mother in that case, following her daughter’s conviction, the primary judge continued at [38]:

“Here also, the plaintiff’s criminal conduct affected the deceased. She felt that she was shunned and was embarrassed by the publicity.”

37 When, in summarising the factors which led him to reject the appellant’s application, his Honour referred to “the shame his conduct brought on the deceased and the family”, it is by no means clear that he was referring particularly or exclusively to her comments with respect to the articles in the newspaper. If the shame had been based solely on the newspaper articles, relating to his arrest and ill treatment in Mexico, there might have been little substance to it. However, it is clear that his mother also knew of his criminal activity and his arrest in Fiji, which ultimately led to his conviction and imprisonment in the United States. Those matters did not require wide publicity (and none was demonstrated) in order to bring shame on the appellant’s family and his mother. The deceased may well have suffered shame in part flowing from her own knowledge of his conduct and her beliefs as to the effect on her other son, Robert. Furthermore, the fact that the articles in question reported his acquittal and release, did not necessarily mean that the only reasonable inference drawn by members of the community who knew the family could be that he was innocent.

38 There was no error on the part of the primary judge in accepting that the deceased felt such shame and that it was a legitimate factor to be taken into account in assessing the appellant’s claim.

39 Finally, there is the complaint, noted at [24] above, that the outcome demonstrated either a misapplication of principle, or an unreasonable or unjust exercise of the power conferred by the Act. In substance this ground sought to reagitate the merit of the claim, on the basis that the combination of factual circumstances warranted an order for provision from the estate. The argument is best identified by setting out the factors relied upon in the appellant’s written submissions, namely that:

“(a) [he had] left Australia in 1968 at the age of 18 with there being no discord between [him] and the deceased but there then being no contact until 1984 when the deceased travelled to Hawaii and spent time with the appellant;

(b) [he had] contact thereafter [involved] the deceased hearing from him every couple of years;

(c) [he had] contact subsequent to 1984 included the deceased obtaining on the appellant’s behalf in April 2004 and whilst he was in prison a birth certificate;

(d) in 1995 the appellant first became involved in the drug trade leading to his moving to Fiji and ultimately his imprisonment there in about July 2001 and subsequently the United States [up] to the time of his release in July 2005;

(e) the deceased believed at least on 9 February 2005 (the date of her instructions for her last Will) that the appellant had sold drugs which belief was consistent with his plea in respect of the United States proceedings;

(f) following the appellant’s release from prison in June 2005 he obtained employment and there was no suggestion of further illegality;

(g) in June 2007 upon being told of his mother’s illness he immediately left [his business in Mexico] and returned to Australia;

(h) the appellant did provide direct physical assistance to his mother at a time [when] he was suffering the ‘significant health problems’ found by the trial judge.”

40 Self-evidently, not all these factors are favourable to the appellant’s case. Nevertheless, they were all considered by the trial judge. In effect, only the last two matters have not been addressed above. In assessing his claims, his Honour referred to “the appellant’s health problems and his belated care for his mother at the very end of her life”: at [43]. The notice of appeal originally included a ground asserting that the primary judge mistook the facts in referring to the shortness of his contact and his “belated care for this mother”. That ground was abandoned. Accepting his Honour’s finding to that effect, the additional ground does no more than assert, in emphatic terms, disagreement with the outcome: cf, albeit in the context of judicial review, Minister for Immigrationand Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [40] (Gleeson CJ and McHugh J); Re Minister for Immigrationand Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 at [5] (Gleeson CJ). However, the outcome demonstrates no misapplication of principle nor is it so unreasonable, in all the circumstances, as to give rise to an inference that there must have been, in some unidentifiable sense, a misapplication of principle. It is rejected.

Conclusion

41 The appeal should be dismissed: the appellant should pay the respondent’s costs of the appeal (other than those of the respondent’s application for security for costs determined by Macfarlan JA on 22 September 2009).

I agree generally with the reasons of Basten JA. The decision of White J to dismiss the appellant’s application under the Family Provision Act was not only open on the evidence, it was, in my opinion, the correct decision. The orders proposed by Basten JA should be made.

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13/08/2010 - Correcting year in file number - Paragraph(s) Coversheet, front page headnote, front page judgment