N v Public Trustee - [2008] SASC 326

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
N v PUBLIC TRUSTEE
[2008] SASC 326
Judgment of Judge Burley a Master of the Supreme Court
24 September 2008
STATUTES - ACTS OF PARLIAMENT - OPERATION AND EFFECT OF STATUTES - RETROSPECTIVE OPERATION - AMENDING ACTS
Family Relationships Act - Application by plaintiff for declaratory relief - declaration as to the existence of domestic partner relationship or putative spouse relationship - plaintiff and deceased lived as man and wife for in excess of 30 years - deceased died in April 2004 - amending legislation commenced in June 2007 - proceedings commenced after that date - whether former provisions of the Family Relationships Act applied. Held: the transitional provisions in the amending legislation had the effect of preserving the amended provisions where the date of death of deceased preceded the commencement of the amendments.
Family Relationships Act 1975 (SA) s 14(1); Inheritance (Family Provision) Act 1972 (SA) s 7; Administration and Probate Act 1919 (SA) s 4, s 72g (pre 2007 amendment), s 72G; Statutes Amendment (Domestic Partners) Act 2006 (SA) s 7, s 20, s 131; Acts Interpretation Act 1915 (SA) s 16, referred to.
Vaher v Gibson (unreported, 19 June 2008, Judgment No [2008] SADC 75), not followed.

N v PUBLIC TRUSTEE
[2008] SASC 326

JUDGE BURLEY. In this matter the plaintiff has applied for a declaration under s 14(1) of the Family Relationships Act 1975 (“the FR Act”) that she and K were, as at 30 April 2004, domestic partners. The plaintiff has also sought an order under the Inheritance (Family Provision) Act 1972 (“the IFP Act”) for provision out of the estate of the deceased. The deceased died on 30 April 2004 intestate. Public Trustee is the administrator of his estate.
The plaintiff says that she and the deceased lived together as man and wife for over 30 years prior to the deceased’s death. Because of that, she asserts that she is either entitled to his estate pursuant to the intestacy provisions in the Administration and Probate Act 1919 (“the A & P Act”) or to provision out of his estate pursuant to s 7 of the IFP Act.
It is clear that the plaintiff is not eligible to take on an intestacy without first obtaining from the Court a declaration that she was, at the date of death, either the putative spouse or domestic partner of the deceased.
It is clear that she has no entitlement under the IFP Act without first obtaining from the Court a declaration that she was, prior to the date of death, either the putative spouse or domestic partner of the deceased. I say “prior to the date of death” because, for reasons which I shall give later, if she obtains a declaration as to a relationship at the date of death, she would take on intestacy all of the estate, provided there were no children of the deceased who survived him.
In the summons, the plaintiff has…

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.

Continue reading N v Public Trustee

Details

AGLC: N v Public Trustee [2008] SASC 326
Case: [2008] SASC 326
Decision Date: 24 September 2008

CaseChat Overview and Summary

N v Public Trustee is a case that deals with the application of transitional provisions in amending legislation, specifically in the context of the Family Relationships Act. The plaintiff, N, sought declaratory relief to determine whether she had a domestic partner or putative spouse relationship with the deceased, who died in April 2004. The proceedings were initiated after the amendments to the Family Relationships Act commenced in June 2007. The legal issue before the court was whether the former provisions of the Act applied to the plaintiff's situation, given that the deceased died before the amendments took effect.

The court examined the transitional provisions of the amending legislation to determine their effect on the applicability of the former provisions. The court noted that section 16 of the Acts Interpretation Act 1915 preserved rights and statuses that existed prior to the repeal or amendment of an Act. The court found that these provisions allowed for the continuation of legal proceedings under the former Act, even after the amendments had come into force. The court also referred to the judgment in Vaher v Gibson, which did not address the transitional provisions, and concluded that these provisions required the application of the former Act to cases where the deceased died before the commencement of the amendments.

As a result of the court's reasoning, it determined that the former provisions of the Family Relationships Act applied to the plaintiff's situation, allowing her to obtain a declaration of putative spouse status. The court granted the plaintiff's application for declaratory relief and declared that the plaintiff and the deceased were putative spouses one of the other as at the date of the deceased's death. This decision ensures that the plaintiff's rights and status are preserved under the former Act, despite the subsequent amendments.

Orders

Orders of the court

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Background

Background to the litigation

Before turning to the facts I should mention that, at the hearing before me on 10 September 2008, the plaintiff’s case was that she had the required relationship with the deceased up to the date of death. If she makes good that claim, it will not be necessary for her to proceed to a claim under the IFP Act because, if there are no surviving issue of the deceased, she will take the intestate estate in accordance with the provisions of s 72g of the A & P Act. The Facts The application proceeded on affidavit evidence. The affidavits relied upon are as follows:·The affidavits of the plaintiff sworn on 29 May 2008, 6 June 2008 and 28 August 2008.·The affidavit of Mr Fabian sworn on 17 July 2008.·The affidavit of Ms Grigore sworn on 17 July 2008.·The affidavit of Mr Witham sworn on 18 July 2008. In assessing the evidence, I remind myself that I must determine whether or not the required relationship persisted for at least five years and that the relationship ended on the death of the deceased. The application must be supported by credible corroborative evidence. Having read the affidavits of the plaintiff, I find that she and the deceased lived together as man and wife for a period in excess of thirty years, ending on the death of the deceased. I find that the evidence contained in the affidavits of Mr Fabian and Ms Grigore corroborate the plaintiff’s evidence to that effect. There is nothing in the evidence or in Mr Frost’s submissions which suggests that there is any basis for denying the declaratory relief sought. For the reasons already stated the appropriate declaration is to be granted pursuant to the provisions of the FR Act as they applied prior to 1 June 2007. For the above reasons I grant permission to amend the summons as requested by Mr Carabelas. In addition, there will be a declaration that as at the date of death of the deceased the plaintiff and the deceased were putative spouses one of the other.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

This approach is supported by and consistent with the provisions of s 16 of the Acts Interpretation Act 1915, the relevant parts of which are as follows:16—Saving of operation of repealed, amended or expired Act(1) Where an Act is repealed or amended, … then, unless the contrary intention appears, the repeal, amendment … does not—…(c)affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any status or capacity existing, prior to the repeal, amendment or expiry; or…(e)affect any investigation, legal proceedings or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty, forfeiture or punishment.(2) Any such investigation, legal proceedings or remedy may be instituted, continued or enforced, … as if the repeal or amendment had not been effected … In the circumstances of this case the relevant “right” is the right under the repealed legislation to obtain a declaration that persons are putative spouses one of the other. The declaration recognises and gives effect to a “status” that they possess pursuant to the provisions of the Act prior to the amendments. Hence the applicability of s 16(1)(c) of the Acts Interpretation Act. Section 16(2) provides that “legal proceedings … may be instituted”. This, in my opinion, clearly refers to the institution of proceedings invoking the former provisions after the commencement of the amending Act. During the course of his submissions, Mr Frost referred me to the judgment of Smith DCJ in Vaher v Gibson, an unreported decision delivered on 19 June 2008, Judgment No [2008] SADC 75. In that case, the applicant sought a declaration that she was the domestic partner of a man who died on 12 April 2003. She alleged that between 1987 and 1992, she and the deceased lived together as man and wife. The deceased died intestate. Because the applicant did not contend that she was, to use a relatively neutral expression, the de facto wife of the deceased at the date of death, she was confined to an application under the IFP Act. The Court had to determine whether the former provisions relating to a putative spouse or the new provisions relating to a domestic partner, applied. His Honour came to the conclusion (at [19]) that the current legislation applied. However, it is clear that no argument was addressed to his Honour regarding the transitional provisions contained in the amending Act. Those provisions have a determinative effect on how the legislation is to be applied. In my opinion, they require the conclusion that, where the deceased died before 1 June 2007, the former provisions of the FR Act apply so that the applicant may obtain a “putative spouse” declaration. Before turning to the facts I should mention that, at the hearing before me on 10 September 2008, the plaintiff’s case was that she had the required relationship with the deceased up to the date of death. If she makes good that claim, it will not be necessary for her to proceed to a claim under the IFP Act because, if there are no surviving issue of the deceased, she will take the intestate estate in accordance with the provisions of s 72g of the A & P Act. The Facts