Vigolo v Bostin & Ors
[2004] HCATrans 107
[2004] HCATrans 107
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P138 of 2002
B e t w e e n -
VIRGINIO VIGOLO
Applicant
and
WANDA MARY BOSTIN and LEOPOLDO VIGOLO (as executors of the Will of LINO VIGOLO deceased)
First Respondents
WANDA MARY BOSTIN
Second Respondent
LEOPOLDO VIGOLO
Third Respondent
NANCY CUNNINGHAM
Fourth Respondent
SANDRA GANGELL
Fifth Respondent
Application for special leave to appeal
McHUGH J
KIRBY J
HAYNE J
TRANSCRIPT OF PROCEEDINGS
FROM PERTH BY VIDEO LINK TO CANBERRA
ON FRIDAY, 2 APRIL 2004, AT 11.20 AM
Copyright in the High Court of Australia
__________________
MR R.I. VINER, QC: If it please the Court, I appear with my learned junior, MR P. MENDELOW, for the applicant. (instructed by S.S.Chohaan)
MR M.J. BUSS, QC: If it please the Court, I appear with my learned junior, MR L.A. TSAKNIS, for the respondents. (instructed by Hudson Henning & Goodman)
McHUGH J: Yes, proceed.
MR VINER: If your Honours please, if I may turn immediately to the applicant’s summary of argument which appears at page 92 of the application book and from that to identify what we submit are the special leave questions that arise in this case. The case arose under the Inheritance (Family and Dependants Provision) Act 1972 (WA), section 6, which along with equivalent legislation in other States the Court will be familiar with.
The particular issues here arise out of the application by the Full Court of the Supreme Court in Western Australia of the obiter that appears in the case of Singer v Berghouse saying that there should not be a gloss placed upon the provisions of section 6 and their equivalents by references to such concepts as moral obligation or moral claim.
Now, his Honour Auxiliary Judge Sheppard at paragraph 83 of the judgment acknowledged that the obiter expressed by the majority in Singer gave rise to a point of controversy and it is with respect to that controversy that it is submitted that in the facts and circumstances of this case and the way in which the provisions of the Western Australian Act have, prior to Vigolo, been dealt with by courts in this State, that special leave is required so that the High Court can provide guidance by resolution of that controversy to not only the courts in this State, but the several jurisdictions around Australia where the same legislation occurs.
If I may put it this way in opening, an underlying and fundamental question is, is the Singer obiter binding and is the moral duty test or the correlative moral claim any longer relevant to the Western Australian Act and similar legislation? It may be observed that, as noted in Singer in the footnote which appears on page 210, which is in the book of materials at tab 1 on page 7, that the origin of the obiter appears to be two pieces of obiter by Justice Murphy, firstly, in Hughes v National Trustees – and in that case his Honour, whilst forming part of the majority, made by way of obiter the remarks that are now picked up in Singer – and, secondly, when in dissent in Goodman v Windeyer his Honour Justice Murphy repeated and confirmed his obiter.
McHUGH J: I think the concern is, Mr Viner, that it introduces a gloss on the statutory language and the question – or at least it is likely to invite error. The real question is, has adequate provision from the estate been made “for the proper maintenance, support, education or advancement” of the applicant? That is the issue, is it not?
MR VINER: Yes, that is, indeed, the issue, your Honour, but we submit that the controversy which has now followed the obiter has created tension, not only between several jurisdictions, but between Victoria, in particular, and the High Court itself, and tensions within Western Australia. Now, as the summary of argument points out, in Victoria, when they put it this way, their Honours there have flatly refused to follow the obiter and those cases that are referred to in Collicoat, Grey and more recently MacEwan.
In Western Australia, prior to Vigolo, the Full Court in Kitson, which was led by his Honour the Chief Justice, following an earlier decision of their Honours, had applied consistently the moral obligation or correlative moral claim test when looking at the provisions of the Act where it speaks of adequate provision for the proper maintenance, education or advancement in life, whereas in Vigolo, and in a more recent case, Marks, which is referred to by my learned friend, the court has rather accepted that the obiter in Singer is binding. Even in Marks there is a difference, that is, a tension, between their Honours who decided that case, between his Honour Justice Murray and her Honour Justice Wheeler.
So that really there has been left a vacuum between the obiter in Singer and that long line of cases going back 100 years which preceded Singer and have consistently spoken in terms of moral obligation and moral claim.
McHUGH J: Justice Murphy’s concern was that it, in effect, required applicants to meet a double condition, namely, inadequate provision and moral duty. He was concerned, in effect, to help applicants rather than hurt their claims. You want to say in this particular case that by reason of what happened before the deceased’s death and his relationship with your client that he had a moral duty to provide for you, independently of whether he needed provision from the estate for his proper maintenance, et cetera.
KIRBY J: Is this not the problem, Mr Viner, that insofar as we get away from the statutory language, we are going to import all sorts of baggage? The words “moral duty”, I think Justice Sheppard traced back to a 1921 case and it probably goes back before that to the very beginnings of the New Zealand legislation. Moral duty has a sort of 19th century, or early 20th century ring about it.
McHUGH J: And in the same case Justice Salmond referred to what a wise and just father, or a just and wise father ‑ ‑ ‑
MR VINER: That is right.
KIRBY J: There is a lot of talk about marmalade on the jam and table and all of that sort of stuff, but do we not do better to go back to the actual words of the Western Australian legislation and see whether, testing the facts of this case by those words, you have an arguable point that has been diverted from by all the talk about moral duties?
MR VINER: If I may respond to that in this way, your Honour. Certainly, one must turn to the language of the Act itself and, indeed, all the cases before Singer which speak of moral duty, including in Re Allen, or moral obligation or moral claim and special claim by their Honours in the High Court have all had regard to the language of the Act, but in doing so and using those descriptions, they have given content in the particular circumstances of the case to those words.
As we know from Bosch, those words “adequate and proper” have different connotations and in all the legislation there is a requirement that the courts have regard to all the circumstances of the case and in Singer itself, having made the obiter observation and referred to Bosch, then at the foot of page 209 and the top of 210 summarised it by saying adequate:
for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased –
So what we submit arises out of Vigolo and the way in which the Full Court through the judgment of Auxiliary Judge Sheppard has said there needs to be an identification of what other things may give rise to a legitimate claim under the Act.
McHUGH J: We referred to them, did we not, in Singer v Berghouse? We referred to have regard to the applicant’s financial position, the size and nature of the deceased estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who had legitimate claims upon him. They are the sort of matters that one has to take into account in the two‑stage test. To introduce this notion of moral duty creates problems.
In your case, how can you succeed except under some basis – in fact, I do not think you attempt to succeed otherwise than saying, “There was this relationship between us and, therefore, he had a moral duty to give me money, even though I have something like 2½ million, or I have received something like 2½ million myself from the proceeds of our relationship.”
MR VINER: With respect, it was not that amount of money that was received from the relationship, but certainly in this case ‑ ‑ ‑
McHUGH J: Over 15 years he had received 1.4 million, had he not, in capital benefits? If you extended the period to 1999 to include the profit from the sale of the Old Coach Road Farm, the figure becomes about 2½ million, does it not? Anyway, it is neither here nor there, Mr Viner.
MR VINER: No, may it please the Court.
KIRBY J: A couple of million dollars is neither here nor there to Justice McHugh.
MR VINER: No, I was not suggesting that, your Honour.
KIRBY J: There still remains the issue of “proper” and Justice Sheller says the word “ought” is brought in an indirect way into the Act and maybe we are just obfuscating the point you are trying to make by this language of the 19th century about moral duty and not concentrating on what is proper in these circumstances. What does “proper” mean as distinct from “adequate”? It is a different notion, but what does it import?
MR VINER: If I may say so, with respect, your Honour, it is not simply a 19th century concept because it has been used consistently throughout the 20th century as being an underlying consideration in the application of the Act and judging, in all the circumstances, whether there has been adequate provision made. That is the first term.
KIRBY J: Yes, but, Mr Viner, it is another illustration of what we see all the time in this Court of the lawyers adhering to the language of judges rather than adhering to the language of the statute. Lawyers love the common law; they hate statutes.
McHUGH J: And you are absolutely right. When I was a junior counsel I would be up in front of the Equity Division every second Friday in these Testamentary Family Maintenance Act applications and we were always referring to moral duties, but that was the test that was used. But in Singer we said maybe it is time to put an end to it.
MR VINER: That raises exactly, if I might say so, your Honour, the point of the controversy – and if I might then ask rhetorically, why is it then that their Honours in Victoria have firmly put their face against what was said by their Honours in Singer by saying that ‑ ‑ ‑
KIRBY J: Well, we all know in Victoria they are more traditional. In my reasons, I think it was in Coates, I said that it was not binding, the obiter were not binding, but I was persuaded to the correctness of it and so was Justice Sheller and Justice Sheppard said that that was his view, too. Now, I just do not know why you are abandoning the alternative frontal attack on the Schlieffen Plan, as to why you are not, as it were, pressing the statutory formula, why you have to have all the baggage of moral duty.
MR VINER: In the trial at first instance, the language of the statute was not abandoned at all.
McHUGH J: I thought at first instance you did not rely on any financial need or lack of resources as the basis of your claim.
KIRBY J: But that is a different thing. That is adequacy. We are talking about what is proper. “Proper” might connote seemly and just in the circumstances of the relationship of a father and a son.
MR VINER: If I might use just what your Honour Justice Kirby has said as justification for the grant of special leave in this case, because of what has been said in Singer, there is a need for the guidance of all jurisdictions in Australia in which these questions arise as to what is the content of that word “adequate”. What is the content of the notion? What kind of circumstances give rise to a judgment that adequate provision has not been made? What is it now the High Court, as it were, having overturned the concepts and the uses of moral obligation and moral duty which is to guide jurisdictions as to the meaning of proper.
HAYNE J: But in the end, Mr Viner, what do you say is the content that that word should have in the circumstances of this case?
MR VINER: The content that we say arises out of the particular circumstances where promises that were made, as found by the trial judge, were not fulfilled, in rather than the promise being fulfilled, the applicant had to pay for the acquisition of what he had promised he would inherit and, having paid for that, it enriched the estate at the expense of the applicant to the tune of some $571,760 which fell into the estate upon the death of the deceased, so that that cash component, together with the contribution which the applicant had made to the building up of the deceased estate, which again was accepted by her Honour at first instance and by Justice Sheppard, meant that the contribution, both cash and in work and business acumen, inured to the exclusive benefit of the other beneficiaries.
So we say that by reason of those circumstances adequate provision had not been made and that proper advancement in life for the applicant out of the deceased’s estate required the applicant receiving a bequest. Now, in the trial we said that should be by reason of the circumstances on an equal basis. So we were giving content to the concepts of adequate provision and proper advancement in life.
HAYNE J: The definition of “proper” seems to me to encounter considerable difficulties because it is collapsing time in important respects. It is relying on promises made years ago, at one level regarding, at another level disregarding the subsequent family rearrangement, but there we are.
MR VINER: That is so, but that gives the situation meaning in terms of having regard to all the circumstances of the case and that takes in everything that has occurred prior to death and takes into account the totality of the relationship, so that it can truly be said that the testator had a moral obligation arising out of those circumstances and arising out of the relationship.
So that, in the situation that we have now, it is our submission that the High Court needs to give content to the obiter rather than leaving it in a vacuum because otherwise the Court will have to set out on another 100 years of decisions in individual instances and for leave to be granted in
this case, in the context of the facts of this case, the Court can say what was meant by their Honours in Singer by way of removing the gloss that the previous decisions of the High Court and other jurisdictions had given to this particular legislative provision.
So we submit that this is an appropriate vehicle by which the Court can remove those tensions between jurisdictions and within the jurisdiction over here in Western Australia.
McHUGH J: Yes, your time is up, Mr Viner.
MR VINER: May it please the Court.
McHUGH J: Yes, Mr Buss.
MR BUSS: Your Honours, in our submission, the substance of the test applied by the courts in New South Wales, Victoria and Western Australia is the same, although there are differences at times in semantics. The passage from the judgment of Justice Salmond in Re Allen, which is cited in the majority judgment in Singer, is not expressed in the statutory language. The majority in Singer doubted, correctly, in our respectful submission, that Justice Salmond’s observations provided useful assistance in elucidating the statutory language and the majority in Singer then, by reference to the statutory language, formulated the tests to be applied at each stage of the two‑stage process.
KIRBY J: But I think it is probably fair to say that there were two very strongly dissenting opinions from Justices Toohey and Gaudron, especially Justice Gaudron’s, and if you count my dissenting opinion in the Court of Appeal as half of a value, you have a real division of view as to what the correct principle is. Do we take 100 years of talk of moral obligation, or is that simply a way judges have tried to reformulate the words “ought” and “proper”?
MR BUSS: In our respectful submission, there is no difference as a matter of substance and this point, in our submission, was made plain by Justice Ormiston in Collicoat v McMillan where his Honour expressed the view that terms such as “moral duty” and “moral obligation” are convenient shorthand expressions referring to a testator’s duty “to make adequate provision for the proper maintenance” et cetera of persons within the statutory class and his Honour went on to say in that case that the term “moral claim” is merely a convenient shorthand expression referring to the correlative right of this duty.
Perhaps the important point to make in this context, your Honours, is that the expression “moral claim” is sometimes used in a different sense from the sense explained by Justice Ormiston in the Collicoat Case and it is used in a different sense in that it is sometimes used to describe a claim said to arise from the sacrifices made or services provided or benefits given to the deceased by a claimant.
Now, a moral claim in that sense is not and never has been, in our submission, a necessary or sufficient condition for the making of an order under the Act. Plainly it is a relevant consideration, and it is a relevant consideration as part of the totality of the relationship between the claimant and the deceased, a consideration that was explicitly referred to by the majority in Singer.
Now, in Grey v Harrison, the decision of the Court of Appeal of Victoria, Justice Callaway put the matter on the basis that the observations of the majority in Singer were intended ultimately as a warning against departing too far from the precise language of the statute and his Honour recognised, correctly, in our submission, that the question is always whether, in any particular case, adequate provision has been made for the proper maintenance and support of the particular applicant, the terms “adequate” and “proper” bearing the meaning developed in Bosch and subsequent cases and referred to by the majority in their judgment in Singer.
The one issue we acknowledge which arises from Grey v Harrison is Justice Tadgell’s remarks where his Honour appeared to consider that the observations of the majority in Singer had displaced what his Honour thought to be well‑settled law and may be consistent with some earlier decisions.
Now, in our submission, that is not so in that the formulation of Justice Salmond in Re Allen and the observations of the majority in Singer do not differ in substance. The majority in Singer was concerned to observe that applications under the Act should be dealt with by reference to the statutory language rather than shorthand descriptions such as “moral duty” and “moral obligation” and the majority in Singer also explain, correctly, in our respectful submission, that where an applicant has a moral claim in the sense that the applicant has provided services or given benefits, et cetera, to the deceased during his or her lifetime, then that is a matter which is plainly relevant and to be taken into account as part of the totality of the relationship between the testator and the deceased.
It is our submission that there is consistency in approach in the Western Australian Full Court. In Kitson v Franks, for example, their Honours referred to the judgment of Justice Salmond in Re Allen and quoted the observations set out in relation to that judgment in Singer, but their Honours also referred to the majority judgment in Singer as to the considerations which are relevant to be taken into account. Subsequent cases in the Western Australian Full Court such as Marks v Marks have applied Vigolo and Vigolo itself applied the observations of the majority in Singer.
So in the end, we submit that the issues that have arisen from time to time are issues of language or semantics and they are not issues of substance. But there is an even more important point why, in our submission, special leave should be refused and that is that the present applicant does not base his case on financial need. Indeed, he expressly disavowed the existence of any financial need, relying instead on what he called his moral claim. Now, it is our submission that although need is obviously a relative ‑ ‑ ‑
KIRBY J: On your argument that is just a statutory shorthand for the statutory provision.
MR BUSS: That is exactly so, and that is, in our submission, how it was appreciated ‑ ‑ ‑
KIRBY J: It is unusual to completely cut out from a will a new wife who has come from New York to live with you – that was Singer v Berghouse – and it is unusual to cut out from a will in a substantial estate a person such as the present applicant, who is a son. That at least enlivens a question as to whether some incorrect approach is being taken to the language of the statute.
MR BUSS: Well, in our respectful submission, it is not unusual when one appreciates the facts. The facts were, as his Honour the presiding judge mentioned, that the applicant and his wife had very substantial net assets as at the date of the trial, at least in the order of $2 million, and they are to be compared with the financial position, circumstances and dependants of the applicant’s siblings.
KIRBY J: Yes, but, Mr Buss, that is adequacy. That is addressing adequacy. I am talking about “proper”, “ought” or “adequate provision”.
MR BUSS: I appreciate that, your Honour, but, your Honour, as I understood it, acknowledged that our argument is that the so‑called moral claim asserted by the applicant was a matter that was taken into consideration as part of the totality of the relationship between the deceased and the claimant, and both her Honour at first instance ‑ ‑ ‑
McHUGH J: I must say I have always thought that the proper construction of the statute really did not require any talk at all about moral claims or moral duties. Given the language of the statute, I have never understood why a derelict son who has been a disgrace to his father but who is now left without any means of proper maintenance at all is not entitled to make a claim under the Act, even though his father may have disowned him. It has always amazed me. It just seems to me that courts have put a gloss on the statute by bringing in talks of moral claims or moral duties. I think that is what Justice Murphy was directing his remarks at.
MR BUSS: With respect, we accept that, but, your Honour, the point I was endeavouring to make is the “moral claim” that the applicant raised in the present case was a moral claim of the kind that I referred to secondly, not as a shorthand description for the statutory test, but a moral claim arising out of what was said to have been services given by the applicant and promises made to him.
McHUGH J: Well, it was “a breach of contract claim”. That was what it was.
MR BUSS: Yes, indeed.
KIRBY J: But does that not import the “ought” notions involved in the statutory words “adequate” and “proper”?
MR BUSS: No, your Honour.
KIRBY J: Does not Justice McHugh’s reasoning about, as it were, the moral neutrality of the statute take you logically to consider what is proper and adequate in this person’s situation in life?
MR BUSS: It does, but that is the second step. The first step is to say that this so‑called “moral claim” is a relevant consideration to be taken into account as part of the totality of the relationship between the applicant and the deceased, together with all of the other matters that are enumerated by the majority in Singer. Having evaluated all of those matters, a judgment is then made as to whether adequate provision was made for the proper maintenance and advancement in life of the applicant.
McHUGH J: The statute itself identifies who has the moral claim. They are identified in section 7 of this Act.
MR BUSS: Yes.
McHUGH J: It is for the person who can bring the application.
KIRBY J: Maybe that itself indicates that Parliament has restricted the class to those who, prima facie, have some natural expectation.
MR BUSS: That is so, your Honour.
KIRBY J: And, therefore, that you do not need to show too much because the Parliament has already singled out this category of people who ordinarily, normally, typically take part in the distribution of the assets of the deceased because that is something that our society, in its organisation, deems proper. I mean, we go on and on about family values. This is part of family values, proper provision.
MR BUSS: On the one hand, one starts out with the freedom of the testamentary disposition. On the other hand, the legislature has seen fit that if, in all of the circumstances, having regard to prevailing community standards and all of the relevant considerations referred to by the majority in Singer, it can be said that adequate provision has not been made for proper maintenance, et cetera, then the Court’s jurisdiction to make an order is enlivened.
The point that we make in relation to the so‑called “moral claim” of the applicant is that that was merely a relevant consideration to be taken into account together with all other considerations, including the position of his siblings, the size of the estate, et cetera. That was done, both by the judge at first instance and on an appeal, and thereafter the question for judgment was whether, in all of those circumstances, adequate provision had been made for the proper maintenance, et cetera.
The judge at first instance exercised a discretionary judgment and formed the view that no provision was required for the applicant, and that discretionary judgment was not set aside and there was no basis for setting aside that discretionary judgment on appeal.
KIRBY J: We have a relatively substantial estate. We have two experienced counsel. We have a divided High Court. We have the suggestion of divisions of, at least, expression and views of what is the binding rule in the courts below and there is an issue as to the exclusion entirely of one son against a background of their relationship. Does that suggest that the court below is applying the wrong test?
MR BUSS: No, it does not, in our respectful submission. The issue that also needs to be borne in mind is this question of need. Although need is a relative concept, it must be shown in order to establish a claim and in the present instance there ‑ ‑ ‑
HAYNE J: The question, Mr Buss, is whether principles of autonomy which underpin testamentary freedom are to be overridden according to some asserted, but undefined, proposition about what might be expected or thought to be the ordinary way in which others might dispose of their estates.
KIRBY J: Or, putting it another way, whether they have been overridden by the Act’s provision for adequate and proper provision and whether the way the court has approached it indicates an erroneous evaluation of those words.
MR BUSS: Not in our submission. The meaning of those words “adequate” and “proper” have been well established for many, many years. They were established in Bosch and they were referred to by the majority in Singer. The meaning ‑ ‑ ‑
KIRBY J: Justice Hayne is quite right to say that at the heart of the statute is this tension between testamentary capacity and making proper provision and how you resolve it and the formula of words you use is not going to get far away from that tension. This is bread and butter stuff. Lots of cases turn on these issues, do they not?
MR BUSS: Well, there are, no doubt, numerous cases that are decided under this legislation, but the issue is that the meaning of “adequate” and “proper” are not in doubt. There is, in every case, a value judgment to be formed as to the application of those words to the infinitely variable facts that will come before the Court. The point I was endeavouring to make about need is that it is an established principle that need must be demonstrated, either existing need or foreseeable need for an order to be made under the Act and that point was made ‑ ‑ ‑
KIRBY J: “Need” is not there in the statute, is it, unless it is hidden in the word “inadequate”? I mean you do not have to be sitting in the gutter starving to be able to mount a case under the statute.
MR BUSS: No, I accept that and we acknowledge that in our written outline, but the point about ‑ ‑ ‑
KIRBY J: So it is all relative. It is relative to the size of the estate and the manner of life of the family and considerations of that kind.
MR BUSS: Well, need really is linked with the use of the word “proper” as to whether in all ‑ ‑ ‑
HAYNE J: I did not think the applicant made any case that he was unable to maintain the lifestyle to which he had been or wished to remain accustomed. There was no such case made at trial or on appeal, was there?
MR BUSS: No, there was not, and the point that we are making is that is why the applicant’s case is hopeless. That is why the applicant failed at first instance. That is why the applicant failed in the Full Court and, in our respectful submission ‑ ‑ ‑
KIRBY J: Do you postulate that in every case to succeed you have to show need?
MR BUSS: Yes, but need is a relative concept.
KIRBY J: Well, I just do not think that is sustained by the words of the Act.
MR BUSS: It is. It is a relative concept. Well, they were observations that were certainly made in Collicoat v McMillan.
KIRBY J: There are two concepts there, adequacy and proper. Adequacy is need, proper is seemliness and rightness and justice within the family context. It is a wider notion. It is a civil law notion, essentially. The common law defended testamentary capacity. All of this is explained by Chief Justice Dixon, I think in Bosch, but the civil law have the protective view, probably going back to religious principles, and we have this compromise in our TFM Acts, but there are two concepts. It is adequacy and propriety, not just adequacy and need.
MR BUSS: No, I accept that. We have accepted that in our written outline.
KIRBY J: It is not the first that worries me at all in this case. I am not concerned about adequacy, but I am troubled as to whether the wrong test is being applied because of some obiter dicta about moral claims concerning the word “proper”, which is there in the statute. It is there. It has to be given meaning.
MR BUSS: The Full Court, in our respectful submission, did not apply any wrong test. The Full Court applied the observations of the majority in Singer for the facts of this case as found by the trial judge and before the Full Court none of the findings of fact made by the trial judge were in dispute, so it was not a case, in our respectful submission, where the Full Court can be said to have applied the wrong test at all. The Full Court accurately applied the observations and approach that is set out by the majority in Singer v Berghouse.
In our submission, there is no basis for contending that the decision of the Full Court was wrong or attended by sufficient doubt to grant special leave and in relation to the use of the shorthand expressions “moral duty” and “moral claim” in the sense referred to by Justice Ormiston in the Collicoat Case, in our submission that is precisely what they are, and when
one looks to the substance of the approach of the courts any differences are matters of semantics or language and they are not differences of substance.
For those reasons, in our submission, the application ought to be dismissed.
McHUGH J: Yes, Mr Viner.
MR VINER: If it please the Court, I would like to make some short responses. Firstly, when your Honours look at what Justice Ormiston said in Collicoat – and I simply refer to page 815, which is at 29 of the book of materials – Justice Ormiston said much more than simply that these terms, “moral obligation” and so on, were shorthand. Justice Ormiston expressed surprise and concern that the High Court in Singer should have appeared to overturn that long history of the use of those phrases.
Secondly, may I point out that as recently as in Barns v Barns [2003] HCA 9 delivered on 7 March 2003 – and I apologise for it not being in our book of materials – his Honour the Chief Justice in his opening words referred and used the phrase “moral claim”. I am referring to paragraph 3 of his Honour’s judgment. So that moral claim is still in the vocabulary of not only the State jurisdictions, but of the High Court itself.
Thirdly, I would like to refer to Bosch, to which my learned friend has referred and placed considerable weight, and I do so with regard to the point raised by Justice Hayne that the applicant did not rely on need in a financial sense. It is clear from Bosch in two respects: one, that financial need is not an underlying prerequisite for a successful claim; and, secondly, that there are not to be imported into the language of the statute words of limitation, and that is also something I think that his Honour Justice Hayne said in Barns.
Bosch is illuminative because in that case the trial judge says that a young man who had £15,000 in cash was not in need and, therefore, had no claim. Their Lordships in Bosch deprecated in very strong terms that view and said that having any particular sum, such as £15,000, for instance, that it affords proper maintenance – or they do not accept that it does, in all conceivable circumstances, afford proper maintenance or “advancement”, as the word is in our legislation, which brings me to my fourth point.
Picking up something that your Honour Justice Kirby said about “proper” and the connotations and content of that word and the reference to family values, all the cases say that what is proper in all the circumstances has to be judged against contemporary standards and, therefore, it is the contemporary standard of the natural expectation that in a situation and the circumstances which applied in this case, that the applicant would have received some benefaction out of the will of his father. That is because, lying at the heart of it, is the fact in these circumstances that the other beneficiaries have been enriched, as it were, by the payment of some half a million dollars that the applicant had to make in lieu of the father fulfilling the promise and also the beneficiaries obtained the benefit of the enhanced estate by reason of the contribution that the applicant had made over 20 years of working on the family farm and in the family business.
So the circumstances of this case do raise two things which justify, in our submission, special leave: one, the need for the Court to provide that guidance for what is meant by the obiter and how adequate and proper provision is to be understood in contemporary standards today; and, secondly, to remove the tensions that undoubtedly exist between jurisdictions, between State jurisdictions and the High Court and within a jurisdiction such as Western Australia. May it please the Court.
McHUGH J: Yes. Mr Viner, let me ask you this. Is there a provision in the Western Australian Act similar to section 33 of the New South Wales Act which allows the court to order costs out of the estate, the costs of all the parties out of the estate?
MR VINER: I am not sure that there is a specific provision, but in the exercise of the court’s jurisdiction, it frequently does that.
McHUGH J: Yes, well, I do not want you to be under any misapprehension if leave were granted. In Singer v Berghouse we refused to make an order under section 33. We said that the appellant having failed had to pay the costs and I would not like your client to be under any misapprehension that, win or lose, the costs will be coming out of the estate. Given what we said in Singer’s Case, it is more likely than not that you would be paying for the costs if you lost. So you are under no misapprehension about that, are you?
MR VINER: I am under no misapprehension at all about that, your Honour.
McHUGH J: Yes.
MR VINER: That has been a matter that has been well explained to the applicant. If I may refer to section 14(6) of the West Australian Act, it gives a general discretion to the Court in these terms:
The Court may make such order as to the costs of any proceeding under this Act as it deems just.
McHUGH J: Yes.
MR VINER: And that is the jurisdiction the courts in Western Australia have exercised and they have, in some instances, ordered costs out of the estate and in other instances ordered a party to pay their costs.
McHUGH J: Yes, well, the case does raise an important question and, accordingly, there will be a grant of special leave in the case.
MR VINER: May it please the Court.
McHUGH J: How long is it likely to take, Mr Viner, Mr Buss?
MR VINER: I would think, your Honour, you would have to allow a day having regard to the questions of law, not so much the questions of fact. I am not sure how Mr Buss would see it.
McHUGH J: Yes, thank you. Do you agree with that, Mr Buss?
MR BUSS: I would not have thought it would take a day, but then I always say what I have to say far too quickly probably. Thank you, your Honours.
McHUGH J: I would not be disheartened by the grant of special leave.
MR BUSS: I am not, thank you, your Honours.
McHUGH J: Yes, the Court will now adjourn to reconstitute.
AT 12.13 PM THE MATTER WAS CONCLUDED
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