The Estate of Mark Edward Tighe

[2018] NSWSC 163

Supreme Court

New South Wales

Medium Neutral Citation:	The Estate of Mark Edward Tighe [2018] NSWSC 163
Hearing dates:	On the papers
Date of orders:	21 February 2018
Decision date:	21 February 2018
Jurisdiction:	Equity - Probate List
Before:	Kunc J – in chambers
Decision:	Letters of administration granted and distribution order made
Catchwords:	SUCCESSION — Intestacy — Indigenous estate — Matters to be considered — Succession Act 2006 (NSW) ss 133, 134, 135
Legislation Cited:	Evidence Act 1995 (NSW) Family Law Act 1975 (Cth) Succession Act 2006 (NSW)
Cases Cited:	Application by the Public Trustee for the Northern Territory [2000] NTSC 52 Re Estate Wilson deceased [2017] NSWSC 1; (2016) 93 NSWLR 119 Stanford v Stanford [2012] HCA 52; (2012) 247 CLR 108
Category:	Principal judgment
Parties:	Kori Alex Campbell (Applicant)
Representation:	Solicitors: Duncan MacLean & Associates Pty Ltd (Applicant)
File Number(s):	2016/280434
Publication restriction:	No

Judgment

Summary

1. The late Mark Edward Tighe (“Mr Tighe”), a Kamilaroi man, died intestate at Quirindi on 15 February 2015. His only significant asset was his superannuation. He was not survived by any person entitled to his intestate estate under the Succession Act 2006 (NSW) (“the Act”). However, the applicant (“Mr Campbell”), also a Kamilaroi man, had been cared for by, and lived with, Mr Tighe’s family, and latterly Mr Tighe, for most of his (Mr Campbell’s) life. As far as Mr Tighe, Mr Campbell and their Kamilaroi community were concerned, Mr Tighe and Mr Campbell were brothers.

2. Relying on what was referred to in the evidence as that “kinship” relationship, Mr Campbell applies under the indigenous persons’ estates provisions in Part 4.4 of the Act for an order to give effect to a scheme for distribution that he be paid the entirety of Mr Tighe’s intestate estate (the “Estate”). Mr Campbell also seeks letters of administration of the Estate.

3. The evidence of Kamilaroi elders establishes that under Kamilaroi laws, customs, traditions and practices, it would be expected that Mr Campbell, as Mr Tighe’s kinship brother, would succeed to the Estate in the absence of any other family. Reasonable notice having been given, no other person has advanced a claim to the Estate. The only evidence of Mr Tighe’s testamentary intentions is that he nominated Mr Campbell as the beneficiary of his (Mr Tighe’s) AMP retirement savings account. Primarily by reason of those matters, the Court is satisfied that the distribution order sought by Mr Campbell is, in all the circumstances, just and equitable and that it should be made and administration granted to Mr Campbell.

The structure of these reasons

4. The first application to be considered by the Court under Part 4.4 of the Act. was Re Estate Wilson Deceased [2017] NSWSC 1; (2016) 93 NSWLR 119 (“Wilson”). In that judgment, Lindsay J considered Part 4.4 and its origins in, if I may respectfully say so, considerable and helpful detail. I gratefully adopt his Honour’s analysis and will not repeat or refer to it in these reasons unless it is specifically necessary. This judgment assumes familiarity with his Honour’s reasons.

5. This case is only the second application to be considered by the Court. It was referred to me in chambers by the Probate Registrar, has not (after the provision of some answers to requisitions) raised any contentious legal questions, and is able to be dealt with on the papers as an uncontested matter. Nevertheless, because of the novelty of the jurisdiction, I propose to make some observations which may be of practical assistance in the preparation of subsequent applications.

6. Because circumstances are infinitely various, what follows in paragraphs [11] to [29] below are only general guidelines which may not be applicable to every case. I also offer them mindful of Lindsay J’s counsel against “undue formality” (Wilson at [118]–[120]) in relation to Part 4.4. It must also be noted at the outset that where, as in this case, the application under Part 4.4 includes an application for a grant of administration, the Court’s rules in relation to such applications must be complied with.

7. I will first set out a list of the matters to be considered, and if necessary, proven or established for the purposes of an application under Part 4.4. This is to some extent a consolidation and elaboration of the matters identified in Wilson at [145]. I will then say something about proof of Customary Law, before coming to the disposition of the present case.

Part 4.4 of the Act

8. Part 4.4 provides:

“Indigenous persons’ estates

133 Application for distribution order

(1) The personal representative of an Indigenous intestate, or a person claiming to be entitled to share in an intestate estate under the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous intestate belonged, may apply to the Court for an order for distribution of the intestate estate under this Part.

(2) An application under this section must be accompanied by a scheme for distribution of the estate in accordance with the laws, customs, traditions and practices of the community or group to which the intestate belonged.

(3) An application under this section must be made within 12 months of the grant of administration or a longer period allowed by the Court but no application may be made after the intestate estate has been fully distributed.

(4) After a personal representative makes, or receives notice of, an application under this section, the personal representative must not distribute (or continue with the distribution of) property comprised in the estate until:

(a) the application has been determined, or

(b) the Court authorises the distribution.

134 Distribution orders

(1) The Court may, on an application under this Part, order that the intestate estate, or part of the intestate estate, be distributed in accordance with the terms of the order.

(2) An order under this Part may require a person to whom property was distributed before the date of the application to return the property to the personal representative for distribution in accordance with the terms of the order (but no distribution that has been, or is to be, used for the maintenance, education or advancement in life of a person who was totally or partially dependent on the intestate immediately before the intestate’s death can be disturbed).

Note. For example, a distribution may have been made under section 92A of the Probate and Administration Act 1898 or section 94 of this Act.

(3) In formulating an order under this Part, the Court must have regard to:

(a) the scheme for distribution submitted by the applicant, and

(b) the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged.

(4) The Court may not, however, make an order under this Part unless satisfied that the terms of the order are, in all the circumstances, just and equitable.

135 Effect of distribution order under this Part

A distribution order under this Part operates (subject to its terms) to the exclusion of all other provisions of this Act governing the distribution of the intestate estate.”

9. Two concepts are fundamental to an application of Part 4.4:

1. “Indigenous intestate”; and

2. The “laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous intestate belonged” (“Customary Law”).

10. Proof of Customary Law is dealt with in paragraphs [30] to [36] below. At this point, it is sufficient to note that the applicability of Customary Law will need to be considered in at least five respects for any application:

1. whether the deceased is an “Indigenous intestate”;

2. to which Indigenous community or group the deceased “belonged”;

3. where the applicant is not the personal representative of an Indigenous intestate, the basis of the applicant’s claim to be entitled to share in the estate under Customary Law;

4. the identity of other potential claimants; and

5. the proposed scheme for distribution of the estate.

Matters to be considered

11. In my view, Part 4.4 requires at least the following eleven matters to be addressed, although some will not be applicable in every case.

12. First, is the deceased an “Indigenous intestate”? That particular collocation of words is not expressly defined, but clearly invokes:

1. The definition in s 101 of the Act that:

“Indigenous person is a person who:

(a) is of Aboriginal or Torres Strait Islander descent, and

(b) identifies as an Aboriginal person or Torres Strait Islander, and

(c) is accepted as an Aboriginal person by an Aboriginal community or as a Torres Strait Islander by a Torres Strait Islander community.”

2. The definition in s 102 of the Act that “An intestate is a person who dies and either does not leave a will or leaves a will but does not dispose effectively by will of all or part of his or her property.”

13. In terms of proof, it is important to note that the three elements of the definition of “Indigenous person” are cumulative. Insofar as s 102 is concerned, evidence of reasonable, unsuccessful search for a will must be provided. In addition to searching the personal effects of the deceased, as a minimum inquiries should be made of any solicitors known to have been instructed by the deceased or, if the deceased resided in a country area, the local solicitors generally; the deceased’s bank; and, the NSW Trustee & Guardian.

14. Second, can the application be made, having regard to s 133(3) of the Act (including whether an application for an extension of time is required)?

15. Third, to which Indigenous community or group did the deceased “belong”?

16. This will determine whose Customary Law must be considered. Because there was no issue about this in the present case, I do no more than note that in a particular case questions may arise as to when it was necessary for the deceased to “belong” to the relevant Indigenous community or group and what exactly is meant by “belonging”. These questions may themselves raise issues of Customary Law and have to some extent been considered in Wilson.

17. Fourth, is the application made by the personal representative of the deceased, or by a person claiming to be entitled to share in the deceased’s intestate estate under the relevant Customary Law? If it is the latter, then the person’s entitlement to make the claim must be established under the relevant Customary Law in order to satisfy s 133(1) of the Act. In my view, the words “claiming to be entitled” in s 133(1) require no more than to demonstrate that the claim is bona fide and arguable.

18. Fifth, have reasonable steps been taken to identify and notify all persons interested in the application? This will need to be proven by affidavits identifying how it is said the persons are interested. This will generally be because they may be entitled in some way to make a claim or that their interests will be adversely affected by the orders sought. In my view, except where it is for some reason impracticable or will cause undue expense or delay, interested persons should be personally served with notice of the application and affidavits of service filed. Furthermore, because the application of Customary Law is a matter of general interest to the relevant Indigenous community or group, applications under Part 4.4 should be advertised in newspapers circulating in the country of that community or group by analogy with the procedure that was used for publication of notice of intended applications for probate or administration before the introduction of the online registry website. For what was done in the present case, see paragraph [49] below.

19. Depending on the facts, interested persons will include (and these categories may overlap):

1. All persons entitled to take on intestacy under the Act (given that a distribution order will exclude those provisions — see s 135 of the Act).

2. The personal representative of the deceased (if any).

3. Other potential claimants under the Act (for example, all persons eligible to make a family provision claim (see s 57 of the Act)) or the relevant Customary Law.

4. Any person against whom an order under s 134(2) of the Act may be sought.

5. Where there is evidence of the deceased’s testamentary intentions, persons intended to be benefitted by the deceased.

6. The categories identified in Wilson at [148] and which I understand could invoke the Act, the relevant Customary Law or more general considerations arising from the facts of any given case: the deceased’s dependants, persons who have a just or moral claim on the estate, or others for whom the deceased might reasonably be expected to have made provision.

20. The previous paragraph is intended to demonstrate that an application under Part 4.4 may require notice to persons over and above those to whom notice is normally required to be given under the Court’s rules for an application for letters of administration of an intestate estate. The task will be to identify those persons who may have an entitlement to the deceased’s estate (whether under the Act, the relevant Customary Law or by reference to broad factual or moral considerations) or whose interests may otherwise be affected by the application. Who those persons are, and where they are likely to be, will depend on the facts of the case and may require consideration of the relevant Customary Law and other evidence, for example, about where members of a particular Indigenous community group may be located. As was done in the present case, regional newspaper advertisements may be required to notify potentially interested persons of the application.

21. In relation to the question of notice (as well as the substantive consideration of any application), it is convenient to set out part of Lindsay J’s list in Wilson at [145]:

“(c) What, if any, evidence is there of acts or omissions, statements or conduct, on the part of the deceased bearing upon his or her testamentary intentions; including, in particular:

(i) Whether he or she deliberately died intestate; and

(ii) Whether (and, if so, how) he or she intended his or her estate to pass, on death, in accordance with an Indigenous understanding of community?

(d) Within the understanding of the Indigenous community or group to which he or she belonged:

(i) Did the deceased person have any dependants with a claim on his or her bounty for the maintenance, education or advancement in life?

(ii) Did any person (including but not limited to dependants) have a just or moral claim on the deceased person?

(iii) Is there any organization or person for whom the deceased person might reasonably be expected to have made provision?”

22. Where no one is entitled to take on intestacy under the Act, there should, as far as possible, be proof of that fact.

23. Sixth, whether there is any property in respect of which an order under s 134(2) may be sought?

24. Seventh, the order or orders for distribution of the estate that are sought. Sections 133(1) and 134 make it clear that it is the order or orders for distribution which are sought that are the ultimate focus of the inquiry in an application under Part 4.4. While the scheme for distribution is obviously an important part of the application, it is not a substitute for the orders sought. Those orders should be clearly specified in the summons and, in my respectful view, an order to the effect that “the estate be distributed in accordance with the scheme of distribution annexed and marked ‘A’” should be avoided.

25. Eighth, is the application accompanied by a “scheme for distribution”? While noting Lindsay J’s observation in Wilson at [162] that the requirement of a scheme for distribution is a matter of substance and not form, in my respectful view, the “scheme for distribution” under s 133(2) of the Act should be set out with particularity, attached to the summons and identified as such. It should specify the Indigenous community or group whose laws, customs, traditions and practices are being relied upon. These steps will assist with the efficient consideration of any application.

26. Ninth, is the scheme for distribution of the estate “in accordance with the relevant Customary Law”? As to proof of this, see paragraphs [30] to [36] below.

27. Tenth, why should the Court be satisfied that the terms of the proposed distribution order are, in all the circumstances, just and equitable? The Court must be positively satisfied of that matter before it can make an order. Lindsay J considers this requirement in Wilson at [135]–[136]. The scope of matters to be taken into account is obviously broad but must, by reason of ss 134(3) and 135, include the proposed scheme for distribution, the relevant Customary Law and what the outcome would be under the Act in the absence of an order under Part 4.4.

28. In my respectful opinion assistance in understanding the application of s 134(4) may be derived from the judgment of the plurality in Stanford v Stanford [2012] HCA 52; (2012) 247 CLR 108 (“Stanford”) at [35] and following. That case considered the property settlement provisions of the Family Law Act 1975 (Cth), in particular s 79(2) that “[t]he court shall not make an order under this section [for the alteration of property interests] unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”.

29. Eleventh, should an order be made in the exercise of the Court’s discretion under s 134(1)? It is not necessary for me to express any view, and I refrain from doing so, as to whether, on the proper construction of the Act, the Court retains a discretion not to make an order under s 134(1) even when it is satisfied under s 134(4) that the order is, in all the circumstances, just and equitable. The possibility that there may one day be a case where that point is more than just academic cannot be completely excluded, for example where an outcome supported by the applicable Customary Law may arguably be contrary to some other aspect of public policy.

Proof of Customary Law

30. In Wilson, Lindsay J said:

“[154] The empirical character of Part 4.4, which directs attention to all the circumstances of a particular case, does not exclude the possibility that expert evidence might be placed before the Court to assist in identification of “the laws, customs, traditions and practices of the Indigenous community or group to which [the] Indigenous intestate belonged”. In an appropriate case, such evidence might include evidence from one or more senior members of the intestate’s community or group, or evidence prepared or endorsed by a Local Aboriginal Land Council.

[155] However, the jurisdiction of the Court can be invoked, and a distribution order can be made by the Court, without any such evidence. To require such evidence in every case, or even in most cases, might be to stultify the Court’s jurisdiction, and to deny to Indigenous families the access to justice intended by enactment of Part 4.4.

[156] In the present case, if not in most or all cases in which the Court’s jurisdiction under Part 4.4 is invoked, identification of an intestate as an “Indigenous person” and exposition of his or her family relationships within his or her “Indigenous community or group” is sufficient to address the concept of “the laws, customs, traditions and practices of the Indigenous community or group to which [the] Indigenous intestate belonged” upon which a claimant’s standing depends.”

31. I do not disagree. However, I make four, additional observations.

32. First, in my respectful opinion, as a matter of general practice applications under Part 4.4 should, whenever possible, “include evidence from one or more senior members of the intestate’s community or group, or evidence prepared or endorsed by a Local Aboriginal Land Council” as to the customary law governing succession or any of the other matters referred to in paragraph [10] above. This is not to diminish the possibility of proof in the way described in paragraph [156] of Wilson. However, clear evidence of the kind to which I have referred will be of particular assistance in the determination of uncontested applications. So it was that in Application by the Public Trustee for the Northern Territory [2000] NTSC 52 Martin CJ was able to observe:

“[4]   The affidavit evidence of each of three deponents, senior members of clan groups making out the Jawoyn people, asserts that she or he is qualified and authorised by Jawoyn tradition to say who is entitled to take an interest in the estate under the customs and traditions of the Jawoyn.”

33. Second, where such evidence is given by a member of the deceased’s Indigenous community or group, that evidence will have the benefit of these provisions of the Evidence Act 1995 (NSW) (the “EA”):

“72 Exception: Aboriginal and Torres Strait Islander traditional laws and customs

The hearsay rule does not apply to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group.

…

78A Exception: Aboriginal and Torres Strait Islander traditional laws and customs

The opinion rule does not apply to evidence of an opinion expressed by a member of an Aboriginal or Torres Strait Islander group about the existence or non-existence, or the content, of the traditional laws and customs of the group.”

34. The dictionary to the EA provides that “traditional laws and customs of an Aboriginal or Torres Strait Islander group (including a kinship group) includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group”.

35. Third, insofar as evidence of the relevant Customary Law is sought to be given by a person who is not a member of the deceased’s Indigenous community or group, then consideration will need to be given whether such evidence is opinion evidence that would be admissible as an exception to the opinion rule under s 79 of the EA.

36. Fourth, the exclusionary discretions under ss 135 and 136 of the EA and the power to waive the rules of evidence under s 190 of the EA may need to be considered in any particular case.

This application — some basic facts

37. In addition to affidavits from Mr Campbell and his solicitor, the application is primarily supported by the affidavits of Christine Allan, Neville Sampson and Jason Allan. Ms Allan and Mr Sampson describe themselves as respected elders of the Kamilaroi people. Mr Allan describes himself as a “proud Indigenous man of the Kamilaroi people” and is the CEO of the Local Aboriginal Land Council at Walhallow, being the community where both Mr Tighe and Mr Campbell were raised and lived. Their evidence was largely to the same effect and I shall refer to it, without any disrespect intended, as the “Kamilaroi evidence”. Each of these three deponents had known Mr Tighe and his family, and Mr Campbell, since at least the time when Mr Campbell came to live with Mr Tighe’s grandfather, Alfred John Tighe. The evidence also included extracts from records of the Department of Family and Community Services relating to the out of home care placement of Mr Campbell with Mr Tighe’s family.

38. Mr Campbell came into care when he was less than one year old, apparently having been abandoned by his mother. The identity of Mr Campbell’s father is unknown. Mr Campbell was made a ward of the Court when less than two years old and was subsequently placed in the care of Alfred John Tighe, Mr Tighe’s grandfather and Mr Campbell’s maternal great-uncle. It follows that Mr Tighe and Mr Campbell were distantly related.

39. Alfred John Tighe had one daughter, known as Jeanette or Jenny (no disrespect is intended in using her given name), who was the mother of Mr Tighe. Mr Campbell was raised by Jenny, who he regarded as his mother. Mr Tighe was 12 years older than Mr Campbell and regarded the latter as his younger brother. Mr Campbell was placed in the care of Jenny after the death of Alfred John Tighe. On Jenny’s death Mr Campbell was placed in the care of Mr Tighe.

40. Against the background of those basic facts, I will now consider the application by reference to the matters which I have set out in paragraphs [12] to [29] above.

An “Indigenous intestate”?

41. The Kamilaroi evidence clearly establishes the three elements of the definition of “Indigenous person” in s 101 of the Act in relation to Mr Tighe. In addition to the anecdotal and observational evidence provided by the Kamilaroi evidence, that evidence includes (and I have relied upon) a document executed by Mr Allan on the letterhead of the Walhallow Local Aboriginal Land Council headed “Confirmation of Aboriginality”. That document states:

“This letter refers to Mark Tighe was (sic) known in Walhallow Aboriginal Community. It is hereby confirmed that the above named applicant is of Aboriginal/Torres Strait Island Descent, identifies as an Aboriginal/Torres Strait Islander and is accepted as such by the community.”

42. I am satisfied that the Court is entitled to rely on that “Confirmation of Aboriginality” by reason of Mr Allan’s many years of personal knowledge and observation of Mr Tighe.

43. Insofar as intestacy is concerned, Mr Campbell has provided affidavit evidence of unsuccessful searches of the kind referred to in paragraph [3] above.

44. By reason of the matters set out in paragraphs [41] and [43] above, the Court finds that Mr Tighe is an “Indigenous intestate” under Part 4.4 of the Act.

Does s 133(3) apply?

45. No grant of administration having yet been made, the potential time limitation imposed by s 133(3) of the Act is inapplicable. The application is therefore able to be made without any other order.

To which Indigenous community or group did Mr Tighe “belong”?

46. The Kamilaroi evidence and Mr Campbell’s affidavit satisfy the Court that Mr Tighe belonged to the Kamilaroi Indigenous community or group.

Is Mr Campbell entitled to make this application?

47. By reason of the Kamilaroi evidence (see paragraphs [55] and [56] below), the Court finds that Mr Tighe has a bona fide and arguable claim to be entitled to the Estate under Kamilaroi Customary Law. He is therefore entitled to bring this application.

Has reasonable notice of the application been given?

48. By reference to the categories referred to in paragraph [19] above, the Court concludes:

1. Based upon the evidence of birth and death certificates of members of Mr Tighe’s family and the Kamilaroi evidence, the Court is satisfied that there are no persons entitled to take on intestacy under the Act.

2. There is no personal representative of Mr Tighe.

3. On the basis of Mr Campbell’s evidence and the Kamilaroi evidence, the only potential claimant under Kamilaroi Customary Law is Mr Campbell and there is no one otherwise entitled to make a claim under the Act.

4. No order is sought under s 134(2) of the Act.

5. The only evidence of Mr Tighe’s testamentary intentions is that he specifically nominated Mr Campbell as the non-binding beneficiary of his (Mr Tighe’s) AMP Retirement Savings Account. This was not his main superannuation account. There is no evidence of any such nomination in relation to Mr Tighe’s main superannuation account, which comprises almost the entirety of his estate.

6. The evidence filed in support of the application does not suggest that there is any other person who would fall within the categories identified by Lindsay J in Wilson at paragraph [148].

49. Because the evidence did not disclose any other specifically identifiable person who might on any view be entitled to Mr Tighe’s intestate estate other than Mr Campbell, the Court required only a general form of notice of the application to be published in the Sydney Morning Herald and in those regional newspapers which regularly circulate in Kamilaroi country. Mr Sampson gave evidence of what areas were generally accepted as Kamilaroi country.

50. The notice stated:

“Kori Alex Campbell proposes to apply to the Supreme Court of NSW for administration by way of a scheme of distribution in the estate of MARK EDWARD TIGHE, that scheme being to distribute the entirety of the estate to KORI ALEX CAMPBELL. Any person wishing to be heard should notify the solicitor for the applicant on [email protected] and the registrar in probate on [email protected] within 28 days of publication of this notice”.

51. No one other than Mr Campbell has come forward claiming an interest in the Estate or otherwise indicating a desire to be heard.

An order under s 134(2)?

52. There is no property in respect of which an order under s 134(2) may be sought.

What orders for distribution are sought?

53. Without intending any criticism of anyone, the application has undergone something of an evolution. It was originally filed under a summons for administration claiming that Mr Campbell was Mr Tighe’s next of kin. The application was originally refused because it was apparent that, at least for the purposes of the Act, Mr Campbell was not eligible under the intestacy provisions. The Probate Registrar drew attention to the possibility of the application being made under Part 4.4. That was done by the provision of further evidence, including in response to requisitions raised on my direction. Because of this, the orders for distribution that were sought were not formalised in any court process. However, it was apparent that the distribution order sought was for the Estate to be paid to Mr Campbell.

Was the application accompanied by a “scheme for distribution”?

54. In response to requisitions, the scheme was provided as an annexure to one of Mr Campbell’s affidavits:

“         SCHEME OF DISTRIBUTION

The Applicant, KORI ALEX CAMPBELL, being the recognised Kinship brother of the deceased, and there being no closer living family member otherwise eligible to take the estate, shall distribute the entirety of the estate of the late MARK EDWARD TIGHE, unto himself, in accordance with the laws, customs, traditions and practices of the Kamilaroi Community to which the deceased and the applicant both belonged.”

Is the scheme for distribution in accordance with the relevant Customary Law?

55. The Kamilaroi evidence (including a Confirmation of Aboriginality similar to that referred to in paragraph [41] above) and the evidence of Mr Campbell himself establish that he is an Indigenous person both in the eyes of the Kamilaroi community and, to the extent it may be relevant, for the purposes of the definition of an “Indigenous person” under the Act. That evidence also establishes, and the Court finds, that for the entirety of their lives together Mr Tighe and Mr Campbell regarded each other as brothers and were accepted as such by the Tighe family and the broader local Kamilaroi community. Independent evidence of their relationship is provided by the documents in evidence from the Department of Family and Community Services, which refer to the brotherly relationship between Mr Tighe and Mr Campbell. This was one of the main factors referred to in the Department’s files as supporting the conclusion that it would not be in Mr Campbell’s interests to be removed from the care of the Tighe family.

56. On the basis of the relationship between Mr Tighe and Mr Campbell, the Kamilaroi evidence is unanimous in its conclusion that it is in accordance with Kamilaroi law, custom, tradition and practice for Mr Campbell to succeed to the Estate. It is sufficient for present purposes to refer to Mr Sampson’s affidavit, in which he deposed.

“18.   Kori was accepted and considered by all of us, to be Jenny’s other son, and brother to Mark.

19.   Our culture believes that the estate of a deceased person, should go to his nearest relatives. This family consists of the deceased wife or partner, then his children. If he has no children, then his blood or kinship brothers and sisters. If he has no brothers and sisters, then his parents will take the estate. If there are no parents, then I expect the Government takes it back.

20.   I believe that according to our custom, and our scheme of distribution, that Kori is entitled to Marks (sic) estate as he is the deceased’s only brother.”

57. By reason of the foregoing, the Court finds that the scheme for distribution set out in paragraph [54] above is in accordance with the laws, customs, traditions and practices of the Kamilaroi community or group to which Mr Tighe belonged.

Is the Court satisfied that the terms of the proposed order are, in all the circumstances, just and equitable?

58. The analysis must begin with Lindsay J’s observation in Wilson at [136] that the language of s 134(4) “is a classic means of invoking jurisdiction essentially equitable in character”. In addition, drawing on and paraphrasing the plurality’s consideration of a provision similar to s 134(4) of the Act in Stanford (see paragraph [28] above), I approach this question acknowledging that the expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. Nevertheless, while it is not to be exercised in accordance with fixed rules, at least three consequences flow from the Act itself, in particular ss 134(3) and s 135.

59. Those consequences are, first, that the Court must consider the scheme for distribution itself; the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged; how the estate would be distributed under the Act but for Part 4.4; and all other circumstances which the Court considers relevant. Second, while s 134(1) confers a broad power on the Court to make a distribution order, it is not a power that is to be exercised according to an unguided judicial discretion. It must be exercised rationally in accordance with legal principles, including those which the Act itself lays down, and for the purpose for which it was intended. In the present case the Court should, therefore, not start with the assumption that the Estate should be dealt with differently from how it would be dealt with under the general provisions of the Act to the extent they apply. Third, nor should the Court start with the proposition that the applicant has a right to the distribution order insofar as it has been established that the order is in accordance with the relevant Customary Law.

60. Bearing in mind the matters referred to in paragraphs [58] and [59] above, the Court is well satisfied that, in this case, it is just and equitable for an order to be made that the Estate be paid to Mr Campbell. The distribution scheme and the Kamilaroi Customary Law unequivocally support that outcome. Furthermore, but for an application under s 137 of the Act, the Estate would pass to the State pursuant to s 136 of the Act. That would be an unjust and inequitable result in the face of what is, quite apart from the situation under the Kamilaroi Customary Law, an overwhelming familial and moral claim to the Estate by Mr Campbell based upon his and Mr Tighe’s, in effect, lifelong relationship as brothers. To this must be added the fact that there is no one else with a legal, customary or moral claim to the Estate.

61. For the foregoing reasons, the Court is well satisfied that an order for the distribution of the Estate to Mr Campbell is, in all the circumstances, just and equitable for the purposes of s 134(4) of the Act.

Should an order be made in the exercise of the Court’s discretion under s 134(1)?

62. Having regard to all of the circumstances recited in these reasons, and conscious of the absence of a contradictor, I am nevertheless unable to conceive of any reason why an order for distribution in accordance with the scheme of distribution set out in paragraph [54] above should not be made once the impediment posed by s 134(4) has been overcome.

63. For this final point of the analysis it is, with respect, useful to recall the way in which the ultimate question was posed by Lindsay J in Wilson:

“[173] The ultimate question for the Court under section 134, in the current proceedings, is, essentially: Had the deceased (a person without dependants) been required to make a will disposing of his estate, what are the terms of the will he would have made having regard to the interests of any person who had a just or moral claim on him, and the interests of those for whom he might reasonably be expected to have made provision, paying due regard, in all the circumstances, to what would be just and equitable?”

64. For the reasons set out in paragraph [60] above, and supported by the fact that the only evidence of Mr Tighe’s testamentary intention (see paragraph [48(5)] above) also firmly points to Mr Campbell, the Court answers the question posed by Lindsay J in the circumstances of this case by concluding that Mr Tighe would have made a will leaving his estate to Mr Campbell. The Court will exercise its discretion under s 134(1) by making an order that the Estate be distributed by payment to Mr Campbell.

Conclusion

65. The orders of the Court are:

1. Order, pursuant to s 134 of the Succession Act 2006 (NSW), that the estate of Mark Edward Tighe, late of Walhallow, who died at Quirindi on 15 February 2015, be distributed by payment to Kori Alex Campbell.

2. Order that letters of administration of the estate of the deceased be granted to Kori Alex Campbell.

3. Order that the proceedings be referred to the Registrar for completion of the grant.

4. Order that the grant issue forthwith.

5. Order that any requirement for further compliance with the Probate rules, and any requirement for an administration bond, be dispensed with.

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Decision last updated: 21 February 2018