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Scott-Mackenzie v Bail

Scott-Mackenzie v Bail

Case [2017] VSCA 108 10 May 2017

Appeal

Legislative Intention

Eligible Person

Stepchild

Statutory Interpretation

Family Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0169

JOHN EWEN SCOTT-MACKENZIE (AS EXECUTOR OF THE WILL OF SIEGFRIED RUOPP, DECEASED)	Appellant
v
LAURACE BAIL	Respondent

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JUDGES:	BEACH and FERGUSON JJA and McMILLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 April 2017
DATE OF JUDGMENT:	10 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 108
JUDGMENT APPEALED FROM:	[2016] VSC 563 (Derham AsJ)

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APPEALS – Court of Appeal – Appeal against decision of Associate Justice reserved to Court of Appeal – Supreme Court Act 1986, s 17B.

STATUTORY INTERPRETATION – Text of legislation – Legislative intention – Whether Parliament intended to include the child of a deceased’s domestic partner within the meaning of ‘stepchild’ – Where interpretation begins with the statutory text read in context – Whether use of extrinsic materials required – Interpretation of Legislation Act 1984, s 35.

FAMILY PROVISION – Application by adult daughter of deceased’s former domestic partner – Whether appellant an ‘eligible person’ – Whether appellant a ‘stepchild’ within the meaning of pt IV of the Administration and Probate Act 1958 – Popple v Rowe [1998] 1 VR 651 referred to – Administration and Probate Act 1958, s 90.

WORDS AND PHRASES – ‘stepchild’ – ‘eligible person’.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R R Boaden	Devenish Lawyers
For the Respondent	Mr J D Catlin	Armstrong Legal

BEACH JA

FERGUSON JA
McMILLAN AJA:

Introduction

Siegfried Ruopp, deceased (‘the deceased’) was born on 10 February 1938 and died on 17 January 2016. He never married and did not have any children.

The respondent was born on 16 December 1939. Her mother is Valerie Grace Holmes. In 1960, the deceased and Ms Holmes commenced living in a domestic relationship. Ms Holmes died on 26 October 2001. Following the death of the respondent’s mother, the deceased commenced a domestic relationship with Margaret Jean Rooke. Upon his death, the deceased left his estate to her.

Probate of the deceased’s will dated 27 January 2004 was granted to the appellant on 7 March 2016. The deceased’s estate was valued for probate at $959,957 and comprised a property in Ringwood valued at $700,000, an amount of $250,000 in bank accounts and an old car.

The respondent claims she is the stepchild of the deceased and eligible to make a claim for provision pursuant to pt IV of the Administration and Probate Act 1958 (‘the Act’), as amended by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (‘the 2014 amendments’).

Application for summary dismissal of respondent’s claim

By summons filed 15 July 2016, the appellant sought to dismiss the respondent’s claim on the ground that the respondent is not an eligible person within the meaning of s 90 of the Act and her claim has no real prospects of success.[1]
[1]Civil Procedure Act 2010, s 62.

The determination of the summary dismissal application depended on whether the respondent, as a child of a former domestic partner of the deceased, is…

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 Scott-Mackenzie v Bail

Details

AGLC: John Ewen Scott-Mackenzie(As Executor of the Will of Siegfried Ruopp, Deceased) v Laurace Bail [2017] VSCA 108
Case: [2017] VSCA 108
Decision Date: 10 May 2017

CaseChat Overview and Summary

In this appeal, the appellant, Scott-Mackenzie, sought to challenge a decision made by an Associate Justice regarding her eligibility for an estate under the Administration and Probate Act 1958. The deceased had been in a domestic relationship with the respondent, Bail, who was the father of the appellant. The dispute arose after the deceased passed away, with the appellant asserting her right to a share of the estate under the Family Provision Act. The appeal was reserved to the Court of Appeal, with the Court exercising its discretion under section 17B of the Supreme Court Act 1986.

The central legal issue before the Court of Appeal was whether the appellant qualified as a'stepchild' under the Administration and Probate Act 1958, specifically within the context of part IV of the Act. Additionally, the Court needed to determine if the appellant was an 'eligible person' within the meaning of the Act. The Court had to interpret the statutory language in its ordinary and natural meaning, taking into account the legislative intent and any relevant extrinsic materials. The interpretation of the Act was guided by section 35 of the Interpretation of Legislation Act 1984.

The Court of Appeal concluded that the appellant did not qualify as a 'stepchild' under the relevant legislation. The Court found that the statutory language did not encompass the child of a deceased's domestic partner, and therefore, the appellant was not an 'eligible person' within the meaning of the Act. The Court held that the interpretation of the statutory text should be based on its ordinary and natural meaning, and that the use of extrinsic materials was not necessary in this instance. Consequently, the appellant's appeal was dismissed. The Court did not find it necessary to order any specific relief beyond the dismissal of the appeal.

Orders