Miller v Miller - [2010] HCATrans 130

[2010] HCATrans 130

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P50 of 2009

B e t w e e n -
DANELLE EVELYN MILLER
Applicant
and
MAURIN ASHTON MILLER
Respondent
Application for special leave to appeal

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 28 MAY 2010, AT 10.58 AM

MR B.W. WALKER, QC: May it please the Court, I appear with my learned friend, MR J.A. THOMSON for the applicant. (instructed by Kott Gunning Lawyers)

MR M.H. ZILKO, SC: May it please the Court, I appear on behalf of the respondent. (instructed by Lavan Legal – Perth)

GUMMOW J: Mr Zilko, we would like to hear from you first.

MR ZILKO: Your Honour, the respondent opposes the grant on three broad grounds. The first is that it has insufficient prospects of success; second, that the point is not of general importance because of the legislative changes that have occurred over the last few years; and, thirdly, that it is an unsuitable vehicle because of particular matters that occurred in the preparation for the trial and the arrangements made between the parties.

In terms of the prospects of success it follows and is generally indistinguishable, your Honours, from the circumstances of other cases of the same kind and the same legal principles as applied in those other cases are applicable here. Nothing distinguishes it, for example, from the fact situation in Gala v Preston or Smith v Jenkins or, indeed, the Western Australian Court of Appeal decision in Kickett.

Although, Gala v Preston, the plurality dealt with certain matters in terms of their judgment by reference to issues of proximity, it is clear that putting that aside the decision of the court and, indeed, the three other judges who form part of the unanimous view of the court was that in terms of principle there was no reason why the plaintiff should succeed in that matter. This case, is as I say, your Honours, indistinguishable. It involved the same type of offence. It involved the same circumstances ‑ ‑ ‑

GUMMOW J: We are not worried about whether it is a particular fact.

MR ZILKO: But the legal principles to which the facts are applied in each of those three cases were identical. The legal principles are unimpeachable in terms of the application of the law to the facts of that kind. I accept your Honour’s observation but there is nothing about the law which requires any reconsideration, particularly in light of the fact that the legislature has taken a hand in the last 10 years in changing the law in respect ‑ ‑ ‑

GUMMOW J: It is not a question of the legislature. There are a number of legislatures in this country.

MR ZILKO: Well, of all the States, your Honour, only Western Australia remains without legislation of that kind. The other States have all made changes to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] HCATrans 130
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of Queensland in the matter of *Miller v Miller*. The dispute concerned the interpretation and application of the *Succession Act 1981* (Qld) in relation to the distribution of a deceased’s estate, specifically whether a beneficiary who had been convicted of the manslaughter of the deceased was entitled to inherit.

The central legal issue before the High Court was whether the forfeiture rule, which generally prevents a person from benefiting from their criminal act, applied in this instance, or if there were any exceptions or mitigating circumstances that would permit the beneficiary to inherit. The Court was required to determine the scope and effect of the forfeiture rule in Queensland law, particularly in light of the provisions of the *Succession Act 1981* (Qld).

The High Court held that the forfeiture rule, as a matter of public policy, operated to prevent the beneficiary from inheriting from the deceased’s estate, notwithstanding the provisions of the *Succession Act 1981* (Qld). Their Honours reasoned that the Act did not expressly abrogate the forfeiture rule and that to allow the beneficiary to inherit would be contrary to fundamental legal principles. The Court affirmed that the forfeiture rule is a well-established principle of Australian law that applies unless expressly displaced by statute. The appeal was dismissed.

Orders