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The Public Trustee v Gulvin

The Public Trustee v Gulvin

Case [2004] WASC 140 25 June 2004

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THE PUBLIC TRUSTEE -v- GULVIN & ORS [2004] WASC 140

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 140
Case No:	CIV:2772/2002	Heard:	3 JUNE 2004
Coram:	MASTER SANDERSON	Delivered:	25/06/04
No of pages:	10	Judgment Part:	1 of 1
Result:	Declaration made
Category:	B
PDF Version

Parties:	THE PUBLIC TRUSTEE TRACEY JAYNE GULVIN JANET LIANE EATON NATASHA RENEE BYRNE (by her next friend JANET LIANE EATON)
Catchwords:	Administration Act Entitlement of a person claiming to be illegitimate to participate in the estate Turns on own facts
Legislation:	Administration Act, s 12A
Case References:	Bedford v Bedford (1977) 3 FLR 11,421 Bermingham v Corrective Services Commissioner of New South Wales (1988) 15 NSWLR 292 Mills v Meeking (1990) 91 ALR 16 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Re Application of the Newscorp Ltd (1987) 70 ALR 419 The Public Trustee v Galvan & Ors [2003] WASC 134 Briginshaw v Briginshaw (1938) 60 CLR 336 Jones v Dunkel (1959) 101 CLR 298 Marshman v Antonia & Ors, unreported; SCt of WA; Library No 970038; 13 February 1997 McComish v Sharpe [2002] WASC 96 McPherson v Seaton, unreported; SCt of WA; Library No 950304; 14 June 1995

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : THE PUBLIC TRUSTEE -v- GULVIN & ORS [2004] WASC 140 CORAM : MASTER SANDERSON HEARD : 3 JUNE 2004 DELIVERED : 25 JUNE 2004 FILE NO/S : CIV 2772 of 2002 MATTER : Section 45 of the Administration Act 1903

AND

The Estate of MICHAEL JOSEPH BYRNE (also known as MICHAEL JOHN BYRNE) late of 6 Stillwater Way, Edgewater, Western Australia (Dec)

BETWEEN : THE PUBLIC TRUSTEE

Plaintiff

AND

TRACEY JAYNE GULVIN

First Defendant

JANET LIANE EATON

Second Defendant

NATASHA RENEE BYRNE (by her next friend JANET LIANE EATON)

Third Defendant

(Page 2)

Catchwords:

Administration Act - Entitlement of a person claiming to be illegitimate to participate in the estate - Turns on own facts

Legislation:

Administration Act, s 12A

Result:

Declaration made

Category: B

Representation:

Counsel:

Plaintiff : Mr D L Jones

First Defendant : In person

Second Defendant : Mr B C Gluestein

Third Defendant : Mr B C Gluestein

Solicitors:

Plaintiff : Public Trustee

First Defendant : In person

Second Defendant : Paterson & Dowding

Third Defendant : Paterson & Dowding

Case(s) referred to in judgment(s):

Bedford v Bedford (1977) 3 FLR 11,421
Bermingham v Corrective Services Commissioner of New South Wales (1988) 15 NSWLR 292
Mills v Meeking (1990) 91 ALR 16
Pambula District Hospital v Herriman (1988) 14 NSWLR 387
Re The News Corporation Ltd & Ors (1987) 70 ALR 419
The Public Trustee v Galvan & Ors [2003] WASC 134

(Page 3)

Case(s) also cited:

Briginshaw v Briginshaw (1938) 60 CLR 336
Jones v Dunkel (1959) 101 CLR 298
Marshman v Antonia & Ors, unreported; SCt of WA; Library No 970038; 13 February 1997
McComish v Sharpe [2002] WASC 96
McPherson v Seaton, unreported; SCt of WA; Library No 950304; 14 June…

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 The Public Trustee v Gulvin

Details

AGLC: The Public Trustee v Gulvin [2004] WASC 140
Case: [2004] WASC 140
Decision Date

CaseChat Overview and Summary

The case of The Public Trustee v Gulvin and Others involved the Supreme Court of Western Australia in determining the entitlement of a person claiming to be an illegitimate child of the deceased to participate in the distribution of the estate. The deceased, Michael Joseph Byrne, died intestate and was survived by his wife and a daughter. The first defendant, Tracey Jayne Gulvin, claimed to be the deceased's natural child, born out of wedlock, and sought to participate in the estate. The legal issues centered around the interpretation of Section 12A of the Administration Act, which governs the entitlement of children to participate in the distribution of intestate estates, and the specific requirements for establishing paternity. The court had to determine whether Gulvin's claim met the statutory requirements and if the marriage between Gulvin's mother and the deceased, occurring after her birth, could be considered an admission of paternity.

The court examined the evidence provided and concluded that there was insufficient evidence to establish that the deceased had admitted paternity of Gulvin during his lifetime. The court emphasized the high standard of proof required under Section 12A(2)(b) and found that the decree nisi, which listed Gulvin as a child of the marriage, did not constitute an admission of paternity. The court reasoned that the term "child of the marriage" in the decree nisi referred to Gulvin's status as a member of the household before the separation of the parties, rather than establishing paternity. The court further noted that the primary purpose of Section 12A was to grant illegitimate children equal rights to legitimate children, subject to stringent evidentiary requirements. Therefore, the court held that Gulvin did not satisfy the statutory requirements and was not entitled to participate in the estate. The court granted the declaration sought by the plaintiff and directed the parties to address the form of the declaration and the costs.

Orders