Rivers v Rivers - [2002] SASC 197

RIVERS v RIVERS
[2002] SASC 197
CIVIL

BLEBY J The plaintiff is the adult son of the late Donald Graeme Rivers deceased. The first defendant is the deceased’s widow. The second defendant is a daughter of the deceased and sister of the plaintiff. She is also administrator of the deceased’s estate. The first defendant is the step-mother of both the plaintiff and the second defendant. The third defendant is an infant daughter of the deceased and of the first defendant, who was born six months after the death of the deceased.
The deceased was shot and killed on 4 July 1997. He died intestate. Ordinarily, his estate would be divided in accordance with the provisions of s 72G of the Administration and Probate Act 1919. Pursuant to those provisions, the first defendant would receive $10,000 and one half of the residue of the estate, and the three children of the deceased would be entitled equally to the other half of the residue. The estate is valued at approximately $1,000,000.
The first defendant was charged with the murder of the deceased. On 14 August 1998 she was acquitted by a jury of murder and of any alternative charges. Nevertheless, the plaintiff asserts that the first defendant wrongfully caused the death of her husband or recklessly caused or committed an unlawful and dangerous act which resulted in his death. He claims that under the common law rule of forfeiture, the first defendant is disentitled from participation in any benefit of the estate of the deceased.
In her defence the first defendant admits picking up a rifle, but denies pointing it at the deceased. She admits placing pressure on the trigger, but denies that she intended to do so and denies any recklessness or intention to kill or to commit an unlawful and dangerous act. She claims that she thought at all material times that the rifle was unloaded. She pleads her charge of murder and acquittal by jury verdict and raises a number of defences in law based on that acquittal. In the alternative, she pleads lack of or diminished moral blameworthiness which excuses her from the forfeiture rule. She is a Filippina, who was thirty years younger than the deceased, and claims that she married him in 1996 under pressure from her family in the Philippines. She pleads that she suffered domestic violence at the hands of the deceased, felt intensely isolated from her culture, was pregnant at the time, did not intend to kill the deceased and did not intend to benefit financially from any actions taken by her.
The first defendant made application to a Master for the determination of some preliminary issues pursuant to r 75.02 of the Supreme Court Rules. The Master refused to give such a direction, and the first defendant now appeals against that refusal.
Before identifying the points which the first defendant seeks to have determined as preliminary issues, it is clear that the plaintiff relies on the principle, at least recognised by…

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: [2002] SASC 197
Decision Date: 19 June 2002

CaseChat Overview and Summary

In Rivers v Rivers, the plaintiff, Donald Graeme Rivers' son, brought a claim against his stepmother, the first defendant, for the wrongful death of his father, who was shot and killed on 4 July 1997. The first defendant was charged with the murder of the deceased but was acquitted by a jury verdict on 14 August 1998. The plaintiff asserts that the first defendant wrongfully caused the death of her husband or recklessly caused or committed an unlawful and dangerous act which resulted in his death. He claims that under the common law rule of forfeiture, the first defendant is disentitled from participation in any benefit of the estate of the deceased. The first defendant denies pointing the rifle at the deceased and claims that she thought at all material times that the rifle was unloaded. She also raises several defences based on her acquittal by jury verdict and seeks to determine some preliminary issues pursuant to r 75.02 of the Supreme Court Rules. The Master refused to give such a direction, and the first defendant now appeals against that refusal.

The legal issues the court was required to decide in this case involved whether the first defendant could be estopped from asserting in the statement of claim that she unlawfully and/or wrongfully killed the deceased; whether it would be an abuse of process and/or contrary to public policy for the trial to proceed further or at all, and the action should be dismissed; whether s 72G of the Administration and Probate Act 1919 excludes the operation of any rule or principle of forfeiture in the event alleged; and whether s 72G of the Administration and Probate Act 1919 excludes the imposition of a constructive trust in the events alleged. The first defendant argued that the forfeiture principle referred to in Helton v Allen has been effectively replaced by the statutory policy which finds expression in the provisions of the Criminal Assets Confiscation Act 1996 and that she is entitled to the estoppel claimed by application of the principles of abuse of process.

The court considered the relevant authorities and found that it was appropriate to exercise the Court's discretion in favour of having the preliminary points of law determined, provided that a statement of relevant facts could be agreed for that purpose by the parties. The court noted that answering the questions in one way may put an end to the case, while an opposite answer will not necessarily do away with a trial on the facts. However, that is not fatal. The case is ready for trial, and resolution of preliminary issues will inevitably delay the trial, if it takes place at all, with consequent difficulties of recollection of events by material witnesses. The arguments proposed are novel, and there is no Australian judicial authority which has considered and determined the arguments. The plaintiff is entitled to have his claim heard and determined in as timely a fashion as possible. The first defendant has very few resources of her own with which to run a three-week trial, and the plaintiff presently has no income of his own. If costs were ordered to be paid out of the estate, it would have an obviously adverse effect on the interest which any of the parties would ultimately receive. Finally, the first defendant's present state of psychiatric health is extremely frail, and she is likely to suffer significant trauma and mental instability in reliving the death of her husband. If there is a reasonable possibility of a trial on the facts being averted, there are strong humanitarian considerations why that course should be followed.

The appeal was allowed, and the order of the Master dismissing the first defendant's application was set aside. The first defendant was directed to prepare a draft case stated for the Full Court. The parties were heard as to the cost of the proceedings before the Master and on the appeal.

Orders