Vigolo v Boston & Ors

[2004] HCATrans 406

[2004] HCATrans 406

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P30 of 2004

B e t w e e n -

VIRGINIO VIGOLO

Appellant

and

WANDA MARY BOSTIN & 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

GLEESON CJ
GUMMOW J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 25 OCTOBER 2004, AT 10.17 AM

Copyright in the High Court of Australia

__________________

MR R.I. VINER, QC:   If it please the Court, I appear with my learned friend, MR P. MENDELOW, for the appellant.  (instructed by SS Chohaan)

MR M.J. BUSS, QC:   May it please the Court, with my learned friend, MR L.A. TSAKNIS, I appear for the respondents.  (instructed by Hudson Henning & Goodman)

GLEESON CJ:   Yes, Mr Viner.

MR VINER:   If your Honour pleases, there is a notice of motion to amend the notice of appeal which is dated 3 August 2004.

GLEESON CJ:   Is that opposed, Mr Buss?

MR BUSS:   No, it is not, your Honour.

GLEESON CJ:   You have that leave.  You will need to formally make the amendment.

MR VINER:   Yes, I will see that that is done.  There is one small housekeeping matter, if it please the Court.  Unfortunately, page 6 of the reasons of the learned trial judge was omitted from the appeal book and from volume 3 and there was some rearrangement of the pages at that point.  If I may hand up copies of page 6.

GLEESON CJ:   Thank you.

MR VINER:   This is another in a long line of cases which have been before this Court concerning what have been generally referred to as the Testator’s Family Maintenance Acts of the various States and of the Territories, and that is reflected in ground 2 of the notice of appeal.  This appeal is different because it firstly calls for a reappraisal and restatement of the construction of the empowering provisions of that kind of legislation.  In this particular State in Western Australia it is section 6(1).  It may be observed that the provisions there are still in their historical state and have not been ‑ ‑ ‑

GUMMOW J:   They are not quite, are they, because when did intestacy come in in Western Australia?

MR VINER:   I was going to add, your Honour, that is subject to certain matters extending the range of persons who are eligible to apply and extending just that provision that your Honour has mentioned with regard to intestacy, but with regard to section 6(1) it appears to be in its original form where in other States some changes have been made and there have been some additional provisions made which, to some extent, direct the courts in those jurisdictions in the way in which they are to look at these applications.  I have in mind recent amendments made in Victoria.

GLEESON CJ:   Do you have notional estate provisions in Western Australia?

MR VINER:   No.  So this appeal calls for a decision whether a claimant and adult son can, without claiming financial need, nevertheless by reason of other circumstances, claim that adequate provision has not been made for the proper maintenance, education, support or advancement of the applicant.  In addressing those issues, a consideration of the dicta in Singer v Berghouse is required concerning what has been described as the gloss or glosses placed on the actual wording of the statute.

GUMMOW J:   It seems to me that the glosses started at a time in New Zealand when they did not have intestacy either, and it is rather hard to talk about moral duty in terms of intestacy.

MR VINER:   Your Honour is right, I believe, when what are now being described as glosses were first talked about in such cases as Allardice and In re Allen and also prior to amendments which introduced the notion that the distribution by way of intestacy may in itself not be adequate provision for certain of the applicants.

GUMMOW J:   In Western Australia you now have specific provision in 6(2), have you not?  We are after all construing the 1972 Act.

MR VINER:   That is right.

GUMMOW J:   It focuses on “adequate provision”?

MR VINER:   That is right.  Section 6(1) is those words which are so well‑known that the provision in the will:

is not such as to make adequate provision from his estate for the proper maintenance, support education or advancement in life of any of the persons . . . 

(2)      The Court in considering for the purposes of subsection (1) whether the disposition of the deceased’s estate effected by the law relating to intestacy, or by the combination of the deceased’s will and that law, makes adequate provision for the purposes of this Act shall not be bound to assume that the law relating to intestacy makes adequate provision – 

and that is a particular provision dealing with cases of intestacy or partial intestacy where, in the earliest legislation of this kind, specific account of intestacy was not had regard to.  So to that extent certainly the Acts have changed since those early statements of what is involved in proper maintenance, education or support were dealt with by those early cases, particularly in New Zealand, and as we know, subsequently followed through to Bosch in the Privy Council.

Nevertheless, since amendments of that kind relating to intestacy have been made, courts in various jurisdictions and this Court in matters that have come to it, have continued to consider the application of the equivalent of section 6(1) to the particular circumstances of the case in terms of moral duty, moral claim, moral obligations and so on.  Also, in particular, this Court and other courts have continued to apply as – whether one calls it a test or a basis for consideration of all the circumstances - the hypothetical wise and just testator.  So even in those cases where there has been comment on the gloss which judicial statements have made upon the actual provisions of the Act, those courts have still continued to look to the hypothetical wise and just testator as the basis upon which to make the necessary judgment.

GLEESON CJ:   What is your Interpretation Act?  What is your interpretation legislation?

MR VINER:   The Interpretation Act ‑ I am not sure of the actual year - 1984.

GLEESON CJ:   Does it have a provision about purposive construction?

MR VINER:   Yes, it does.

GLEESON CJ:   Perhaps your junior could give us a reference to that at some stage?

MR VINER:   Yes, I will obtain copies of that and refer the Court to it in due course.  Now, it has been said before, and I think it is not necessary to dwell on it, but as between the various Acts of this type and in regard particularly to the language of section 6(1), nice distinctions between the different States’ legislation are not to be drawn.  Now, that is not to say that there may not be particular provisions in some of those States’ jurisdictions which modify the generality of the language in the Western Australian provision of section 6(1), but so far as the principal matters of concern in this case are to have regard to what has been said by earlier decisions, the matter in issue is essentially the same, that is, what is the construction to be placed on these words:

adequate provision . . . for the proper maintenance, support, education or advancement –

of the applicants.  Now, if one turns to the actual wording and looks at the use of the word “proper” without any of the glosses, then we may turn to what is defined by the Oxford English Dictionary, which is straightforward but nevertheless appropriate, meaning:

Of requisite standard or type; fit, suitable, appropriate; fitting, right.
Conforming to recognized social standards or etiquette; seemly, decent, decorous –

and those concepts of fitness, suitability, appropriate, fitting and conforming to recognised social standards all find their language in the various decisions in which the Court has even applied the gloss.  So one finds a relativeness between the considerations in terms of the gloss or considerations strictly in terms of what is proper.

GLEESON CJ:   You do not apply glosses.  There is nothing wrong with glosses.  That is perhaps the most ancient form of legal exegesis, but the danger is that people will end up applying the gloss instead of applying the test.

MR VINER:   Indeed, and I think that was ‑ ‑ ‑

GLEESON CJ:   That is what the warning in Singer was about.

MR VINER:   Indeed, it was a warning that had been made earlier by Justice Fullagar and Justice Williams, I think, both in Coates, and also by Chief Justice Dixon, so the recognition of the danger of applying the gloss rather than the words of the statute has always been there, but nevertheless, the gloss, as it has been said by Justice Fullagar, may be useful but so long as in answering the question whether it is proper is based upon the text and not the gloss.  If I might say so, I think that became clear prior to Singer but, nevertheless, Singer was an appropriate additional warning when matters of this kind came before the lower courts.

In looking at the meaning of “proper” it does import propriety – “propriety” meaning:

Fitness, appropriateness, suitability, rightness, correctness –

and again -

Conformity to conventional standards –

So the meaning of “proper” and “propriety” are overlapping but, nevertheless, have at their core that concept of fitness and appropriateness and rightness according to the circumstances and also according to current community standards.

Now, that appears clearly to have been accepted, that is, applying those concepts according to current community standards in New Zealand in those cases that have been referred to in the submissions Re Wilson and Re Leonard, also by Justice Stephen in White v Barron and by Justice Gibbs in Goodman v Windeyer.  So there seems to be a continuity of judicial acceptance of the meaning of “proper” according to current community standards in the different stages of social history in which those words have had to be applied.

The other consideration relevant at this point is that the wording of section 6(1) does not contain any limitation upon the application of those words to any particular circumstances.  There is no restraint upon the Court by any express restriction of the circumstances in which they are to be applied, and as observed in Bosch at page 481 by Lord Romer the only limitations are the limitations that are to be implied by the word “proper” itself, and as his Lordship there and in all the other cases before and since make clear what is proper is to be considered in:

“all the circumstances of the case,” –

and as I understand what is said by their Honours in Singer on those pages 210 and 211 where the comment is made about “the gloss” and in the subsequent reference to Bosch that is the substance of what the Court was saying in Singer.

Now, all the cases – and this may be trite to observe – are reflections of the Court’s evaluative judgment according to all the circumstances of the case on what is proper in the different family and social circumstances which are presented to the Court across ‑ ‑ ‑

GUMMOW J:   Was Singer the first case in this Court on this legislation after the final abolition of Privy Council appeals ‑ 1994, I think it is, is it not?  Goodman v Windeyer was 1980, White v Barron the same year.

MR VINER:   I think it may well have been, your Honour, yes.

GUMMOW J:   The reason why I mention it is I think that some of the earlier statements by Justice Fullagar and Sir Owen Dixon were a little cautious because they were writing looking over their shoulder at the Privy Council, and in particular to Bosch which had used this gloss.

MR VINER:   Indeed.  Consistently, all the cases since Bosch had relied upon Bosch as stating the principles to be applied by the courts.  Nevertheless, it is to be noted, and it is something that I noted for myself, that Bosch appears to have been heavily relied upon by their Honours in Singer notwithstanding the observations made about the gloss.

GLEESON CJ:   I do not think that there has ever been a decision of this Court on this legislation in which references to moral obligations have not been made, but that is almost inevitable having regard to the nature of the subject matter, but the question or a warning that was given by the majority was against what evidently they regarded as being implicit in the minority approach in Singer, that is, placing undue emphasis on the judicial commentary.  I, for my part, find it a little difficult to imagine how any statement of the purpose of legislation is not a gloss, but the ultimate exercise is to apply the words of the statute.

MR VINER:   Indeed, your Honour, and one could find many examples where in the course of interpreting particular statutory provisions the courts have sought to state principles other than in the strict terms of the legislation in order to apply it to all the circumstances and that is really obvious when the court is seeking to apply a word like “proper” which has all those attributes of meaning to which I have referred, and all of them import some sense of correctness or fitness according to the family circumstances in which the cases come before the court.

So inevitably there is some notion of moral duty or moral obligation or as, indeed, his Honour Justice Callinan said recently in Barnes, familial obligation.  So that sense of duty or obligation in the correlatives somewhat naturally found their way into the statements of the courts over the decades, and ‑ ‑ ‑

GLEESON CJ:   At some stage before the argument concludes, could you get your junior to give us a reference to the parliamentary speeches in Western Australia made upon the introduction of the original 1939 legislation and then upon the introduction of the 1972 legislation?

MR VINER:   Yes, I will have that done, your Honour.

GUMMOW J:   Was there any Law Reform report before the 1972 Act?

MR VINER:   Not that I am aware of, no, not that I am aware of, unless it referred to the question of intestacy which seems to have been the matter of substance amended in 1972.

GUMMOW J:   Yes.

GLEESON CJ:   It now has reference in it to “de facto partners”, did that come in in 1972?

MR VINER:   I believe so.  Again, I would have to check the particularity of that.

GLEESON CJ:   I am just interested to know, amongst other things, what was the occasion for the introduction of the 1972 Act, and I am also interested to know how the purpose of the legislation was expressed in Parliament when the legislation was introduced.

MR VINER:   I will have those extracts from Hansard obtained but they all, so far as I am aware, reflect a desire on the part of Parliament and an intention on the part of Parliament to ensure that relationships other than strict legal marriage can nevertheless give rise to a legitimate claim upon the dispositions of a testator by will so as to ensure that the categories of claimants were not limited, but having extended the categories of claimants, Parliament maintained the operative or the empowering provisions of section 6(1).

In looking at the course of judicial history, and to the application of these empowering provisions, the courts have consistently turned to Bosch as the statement of the principle, and notwithstanding the abolition of appeals to the Privy Council, it appears across jurisdictions, and as I have pointed out in this Court in Singer, courts have still turned to Bosch as the guiding principle to apply, obviously, with that caveat against applying the gloss beyond its permitted application to seek to extend the actual wording of the statute beyond its fair meaning and fair application.

GUMMOW J:   Does that mean the section has two operations, one in relation to fully testate succession and one in relation to wholly or partly intestate succession?

MR VINER:   Yes.

GUMMOW J:   To construe the section through a different spectacle, 6(1)?

MR VINER:   If I may respond, with respect, your Honour, I do not see it in that way.  I mean the spectacle is still required to look at and engage with the wording in subsection (1) whether it is a case of non‑intestacy or non‑partial intestacy.

GUMMOW J:   Assuming intestacy produces an accession of assets to the Crown, it is hard to speak of competing moral claims of the Crown and other claimants.

MR VINER:   Indeed, that is right, but I think that sort of situation is to be understood that if by operation of law the assets of a testator go to the Crown, then in one sense, and it may be the case that those assets are not part of the estate, in the kind of consideration which this Court was concerned with in Barnes what is and what is not part of the estate, but unless there is by operation of law the removal of assets out of the estate, then on an intestacy, of course, provision can be made out of all the assets that comprise the estate.

So for my part, with respect, I do not see any difficulty in applying the provisions of subsection (2) regarding to intestacy in conjunction with the requirements of section 6(1) because in the end the Court is charged with having to decide whether adequate provision has been made from the testator’s estate “for the proper maintenance, support, education or advancement in life of” an eligible person, and an eligible person has been expanded to include someone to whom part of the estate would go by way of intestacy.

Now, the other word in that section which is relevant to this appeal is “advancement” and in the Western Australian provision it is maintenance, education, support or advancement.  In some of the other provisions, for example, New South Wales, you have the word “and” used preceding “advancement” rather than “or”, but in the end that may not make any difference to the outcome of this appeal.

It is relevant, the meaning of advancement and its relevance in cases of this kind is of particular relevance in this appeal because the appellant did not make a claim on the basis of financial need, so he was not claiming that he needed to be maintained in the sense of a dependent son, but rather by reason of the circumstances, to which I will refer, provision ought to have been made for the appellant’s advancement in life.

The words “advancement in life” have been recognised in the cases to which I referred to in the written submissions as words of wide import and those words themselves, “advancement in life”, are not unimportant, and I have regard to the statements to that effect in McCosker, Blore and Lieberman where that meaning of “advancement” is well‑recognised by the courts.

Next, in the application of section 6(1) to the circumstances of this case, I refer to the Court with what is well accepted, not controversial, that this legislation is remedial and therefore it deserves to have a liberal view taken of its interpretation as stated in Holmes, Coates, and most recently in Barnes where that was particularly recognised by your Honours Justices Gummow and Hayne at 187 and 188 of that decision.  So that understood and applied as remedial in character the words used are wide enough to give a complete remedy according to the circumstances of the case, and the fact that the jurisdiction is granted to the Court in those very wide terms as well as those cases to which I have referred acknowledged in Wallidge v Doderidge.  As said by your Honours Justices Gummow and Hayne in Barnes at page 188, those statements are the starting point of the construction and they are also of consideration in giving meaning and application to what is proper maintenance, et cetera, or advancement in life of the particular applicant.

Those principles to which I have taken the Court are the ones to be applied to the circumstances of this case.  The question for the courts below is, as it is in this Court, has adequate provision been made for the appellant’s proper advancement in life?  And that is to be answered by the text of section 6(1).  Now, all the cases before and since Bosch have said that those words are to be applied in all the circumstances of the case.  In some of the early legislation, those words actually appeared in the legislation.  They do not appear in the Western Australian legislation, as stated in Bosch; they are clearly to be implied.  When, in Singer, the Court was having regard to those matters, starting at 209 and 210, if I may refer the Court to that, having observed that:

The first question is, was the provision (if any) made for the applicant “inadequate for [his or her] proper maintenance, education and advancement in life”?  The difference between “adequate” and “proper” and the interrelationship which exists between “adequate provision” and “proper maintenance” etc were explained in Bosch v Perpetual Trustee Co Ltd.  The determination of the first stage in the two‑stage process calls for an assessment of whether the provision (if any) made was inadequate 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, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

So their Honours were ‑ ‑ ‑

GLEESON CJ:   What would be the difference between a legitimate claim and a moral claim?

MR VINER:   I think probably nothing, your Honour, in the sense that when all the relevant circumstances are taken into account, it may equally be said that this is a legitimate claim upon the bounty of the testator ‑ ‑ ‑

GLEESON CJ:   We are talking about a claim on bounty. 

MR VINER:   Yes.

GLEESON CJ:   Not a legal claim on assets.

MR VINER:   That is right, and, in the same sense, “moral” may well be used interchangeably with “legitimate” in the sense of saying in these particular circumstances proper maintenance et cetera required provision to be made.

GLEESON CJ:   Where is that word “legitimate” used here?

MR VINER:   In the second last line of the first paragraph on page 210, right at the very end. 

GLEESON CJ:   Thank you. 

MR VINER:   I do not take that word “legitimate” to be limited to the category of persons who are eligible persons, but rather “legitimate” is referrable to what in all the circumstances was a proper level of maintenance et cetera to be made.

GLEESON CJ:   Well, I suppose the concept of a legitimate claim upon a person’s bounty is a gloss on the statute?

MR VINER:   It may well be, but in terms of using another word in place of the word “proper”.

GLEESON CJ:   I wonder, Mr Viner, whether a lot of the commentary, going right back to 1910 in New Zealand, on this legislation is not aimed at inducing some kind of restraint on what might otherwise look from the words in the statute as a dangerously open‑ended power?

MR VINER:   If I may respond in this way, I believe not. 

GLEESON CJ:   Well, you find a lot of exhortations in these old cases, along with some of the concepts we have been talking about, against rewriting the will.

MR VINER:   That is right, and, if I may put those observations of your Honour in context, as I see it, firstly, to suggest that those words are intended to put a restraint on the exercise of power does not sit easily with those decisions that I have referred to and their Honours Justices Gummow and Hayne referred to in Barnes, which pointed to the very wide jurisdiction which these words give and also to the statement in Bosch, to which I have referred, that the only limitation within this kind of operative language is to be implied from the words “adequate” and “proper” themselves.  The suggestion that phrases such as “moral duty”, “moral obligation” and so on are intended as a restraint does not sit with those clear statements that a liberal interpretation is to be given to this legislation. 

HAYNE J:   But the reference in Bosch or references in Bosch to moral duty, moral obligation, seem to be equated, at least in Bosch [1938] AC 463 at 479, with the concept of proper and adequate provision. That is, their Lordships refer to Justice Salmond in Allen as truly saying that:

The Act is . . . designed to enforce the moral obligation –

to make proper and adequate provision.  Now, if we strip out the colour supplied by words like “moral”, “legitimate” and the like, where do we go?  We go back to proper and adequate provision.  What are we adding by reference to moral obligation, moral duty, legitimate claim and the like?

MR VINER:   My first response there, your Honour, is that if you strip out those phrases and the underlying concept behind them and use the word “proper”, one must then use other words to describe the content of “proper”, and that seems to be the continual dilemma of the courts.  Now, in the early years, they resolved that dilemma by two concepts, one, moral duty or moral obligation, and, secondly, placing themselves in the position of the wise and just testator, in the context of the statement about the wise and just testator in Bosch. 

So that if the Court is to now say that one only looks at that word “proper”, then, if I may respectfully suggest, the Court then needs to explain what is meant by “proper” in the circumstances of this kind of legislation and the kind of circumstances that arise under it.  Dare I suggest that we would find that your Honours would be using other words, whether it be “legitimate” or “fitting” or “appropriate” to explain what is meant by the word “proper” as applied to the particular circumstances of the case before it.

GLEESON CJ:   Well, we do not have to reinvent the wheel, but we have to deal in this case with an age‑old problem in the application of this legislation, that is to say, the position of an able‑bodied, adult son of ample means who is aggrieved by having been excluded from a parent’s will.  This is an old, old story.  Do you challenge the finding of fact made by Justice McLure on page 605 at paragraph 132?

MR VINER:   That “Virginio was adequately and proportionately compensated”?  Is that ‑ ‑ ‑

GLEESON CJ:   Yes.

MR VINER:   Well, the way I respond to that is to also turn to what was said by his Honour Auxiliary Judge Sheppard in the appellate court, which appears at pages 637 and 647.  Firstly, at page 637 paragraph 66, where his Honour Justice Sheppard – if I may preface taking the Court to the actual language – Justice McLure at paragraph 132 was referring to the appellant’s position as an equal partner in the partnership with his mother and his father and saying that he was:

adequately and proportionately compensated for his contributions to the farming business –

that is, within the commercial entity of the partnership and later the company, and that was right, according to the accounts of the partnership and the company.

GLEESON CJ:   But she was doing a little more than that, was she not?  If you look at the last sentence in paragraph 132 on page 605, if you substituted for the words “moral claim” the words used by the majority in Singer v Berghouse on page 210, that is, “legitimate claim on his bounty”, her reasoning would be precisely the same, would it not? 

MR VINER:   Yes, I would accept that, but nevertheless I would still criticise it as not an adequate examination of all the circumstances of the case.

GLEESON CJ:   Yes, you might be right factually, but absolutely nothing in this case turns, does it, on any difference in meaning between the expression “moral claim”, on the one hand, and the expression “legitimate claim on his bounty”, on the other?

MR VINER:   I believe not, your Honour, and “moral claim” was used in the application before Justice McLure in accordance with accepted authority in Western Australia that moral duty and moral claim were the yardstick, as it were, by which what is proper was to be judged.  But in terms of the facts referred to there by Justice McLure, the first point that I make is that that is referring to the outcomes of the partnership in terms of the share of income and the share of capital to be attributed in the partnership and company accounts to the appellant.  Now, at page 637 of volume 3 of the appeal book in paragraph 66, Auxiliary Judge Sheppard referred to a submission made by counsel for the appellant, placing:

significant emphasis on the contribution the appellant had made to the building up of the family business during the period 1973 to 1993.

Now, that is a different thing, a different factual circumstance, to be taken into account than the one referred to by Justice McLure in 132.  Justice Sheppard went on to say:

Undoubtedly, that was so as was the fact that the appellant had received “meagre” cash drawings from the partnership and the company.

Then, on page 647 in paragraph 96, Justice Sheppard said: 

Undoubtedly, the evidence establishes that Virginio made a very substantial contribution to the welfare of the family business and that of his father and mother.

That is to say, the appellant made a very substantial contribution to the building up of the assets of the testator’s estate and that circumstance is one of the circumstances referred to in Singer at page 210 which can give rise to a legitimate claim.  As one sees there, having referred to “all the circumstances” at the top of page 210 as the basis for judging whether:

the proper level of maintenance etc appropriate for the applicant –

had been provided for –

having regard, amongst other things –

I will comment on that phrase in a moment –

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, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. 

It is clear, from what their Honours said in Singer, that that was not an exhaustive list of relevant circumstances.  They are some of them, and the contribution of a claimant to the building up of a testator’s estate has consistently in the authorities been referred to as a relevant circumstance.  So one of our contentions ‑ ‑ ‑

HAYNE J:   Why is it relevant here, given the subsequent family rearrangement?  True it is he contributes to build up.  There is then the family rearrangement, the parties go their separate ways.  Why are we looking behind the rearrangement?

MR VINER:   We are looking behind it, your Honour, because the promise and its repetition during the course of the partnership was fundamental to the appellant’s being in the partnership and continuing in the partnership.

HAYNE J:   Be it so, what is the relevance of that?

MR VINER:   The second relevance of that is that when, rather than the promise being fulfilled upon the dissolution, the appellant paid for it – the sum of $571,660 – that amount, paid for by the appellant, became part of the estate, and therefore, under the testator’s will, the testator not having made any provision for the appellant, the appellant’s money became part of the estate and was distributed to the appellant’s siblings. 

HAYNE J:   What is the process of reasoning that connects that event and the question of “proper” and “adequate”?

MR VINER:   The process of reasoning is that that is a relevant circumstance in the totality of the relationship between the testator and the appellant.

HAYNE J:   That is the end.  It does not yet elucidate to me what the process of reasoning is.

MR VINER:   Well, the process of reasoning, whether one starts with what are all the relevant circumstances or whether one starts with the totality of the relationship – as to the latter, I just observe that in Singer their Honours said that that was one of the circumstances, not the only one, and an end in itself. 

When one looks at the family relationship, the paternal relationship, the circumstances in which the eldest son began working the farm with his parents at the age of 16, the circumstance that when he wanted to strike out on his own independently, he was suggested, that is, encouraged by his father to come into the family farm on the basis of a promise that the family farm, the Old Coach Road, “will be yours one day”, that promise is repeated during the course of the partnership.  So one might say, whether for better or for worse financially, the promise is repeated; in other words, whether the family partnership prospers or falls on bad times. 

So they are all circumstances which, in my submission, a court is bound to have regard to as relevant when considering whether adequate provision has been made for proper advancement in life.  And the court takes into account the other matters that have been referred to in Singer:

the size and nature of the deceased’s estate, the totality of the relationship –

as I have referred to –

and the relationship between the deceased and other persons who have legitimate claims –

and, additionally, as I have pointed out, the fact that the appellant contributed to the building up of the estate.  The process of reasoning then is to identify what are the relevant circumstances, and what is relevant is what can impact upon the way in which the wise and just testator, in terms of Bosch, taking into account all of the circumstances of which he was or ought to have been aware, what provision, if any, ought the testator to have made. 

I hope, with respect your Honour, that that displays a process of reasoning which is consistent with the authorities and the way in which this and other courts have dealt with the relevancy of circumstances.  So that, in the end, the promise not fulfilled inured to the benefit of the estate and hence to the benefit of the named beneficiaries in the estate at the expense of any provision being made for the appellant.

GLEESON CJ:   What is the factual relationship – I am not sure I understand the facts sufficiently yet, but what is the factual relationship between the promise of which you speak and the deed of settlement?

MR VINER:   The only factual relationship is that the promise was not fulfilled.

GLEESON CJ:   Of what was the deed of settlement in settlement?

MR VINER:   It was in settlement of what by then had become a company.  The partnership had been transformed into a company in which mother, father and eldest son were equal shareholders, which held the family farm, known as the Old Coach Road Farm ‑ ‑ ‑

GLEESON CJ:   Was it not to achieve a disentangling of family interests?

MR VINER:   Yes, it was.  Not completely, because some family interests – what are referred to as investment properties – were still retained by the appellant, his mother and his father, by virtue of a family trust that his father set up.

GLEESON CJ:   But what I need to understand is, when they went their separate ways, pursuant to the deed of settlement, how did the promise survive?

MR VINER:   The promise did not survive and could not survive as a promise that the appellant would inherit the family farm because the father, rather than giving effect to the promise, required the son to pay for the father’s interest in the family farm.  That is in contradistinction to the conduct of his mother as part of the settlement; his mother made a gift of her interest in the family farm.  The settlement statements, apart from the description of them by the trial judge and Justice Sheppard, may be found in volume 2 starting at page 325, which is the dissolution agreement.  For convenience, and, I think, to untangle the accounting process that went on, it would be useful to start at page 333.  If I might take a moment of the Court’s time, I will take the Court through that. 

CALLINAN J:   Mr Viner, is it right that the fourth respondent was a partner in the farming business at one stage, or am I wrong about that?

MR VINER:   Yes, for a very short time, as well as Sandra, I think, but it was acknowledged that they were partners for tax purposes.  Nancy ‑ ‑ ‑

CALLINAN J:   It seems as if the whole thing may have been driven to some extent by tax purposes.  The allowances that were made to the appellant’s wife of $50 and $70 – that was surely done on that basis for taxation reasons, was it not? 

MR VINER:   I am not sure about that.  It was not a question that was investigated by either of the experts, that is, the accounting witnesses who gave evidence.  But what was commonly accepted was that whilst the daily or the weekly drawings were meagre, in that sense of being very small, there was appropriate crediting of shared income to the capital accounts, accumulation of profits and then reinvestment into other properties.

CALLINAN J:   Well, there is no suggestion that those ladies either got or did not get what they were entitled to at the time?

MR VINER:   No.

GLEESON CJ:   But whether you express it in terms of moral claim or legitimate claim on the bounty of the testator or just claim or a requirement of propriety, how did the claim based on the promise to which you refer survive the settlement?

MR VINER:   It survived, I would submit, in this way.  One looks at page 333.  Your Honours will see the amount of $571,760 “Advance to L Vigolo Family Trust”.  That is the price paid by the appellant rather than receiving the promise.

GLEESON CJ:   As part of the settlement?

MR VINER:   As part of the settlement.  If I might take it just step by step shortly, your Honour, at page 334 the Court will see the crediting of the gift made by the mother of her interest in the Old Coach Road.  Then at page 335 the settlement statement for the appellant and his wife as the VSV Family Trust, $800,000 being the purchase price for the farm lands, Old Coach Road, so that, in the end, the appellant and his wife had to find $251,000.  Then at page 336 the amount of $571,760 again appears.  Now, what the testator did was to create a family trust at that time of the dissolution and advance the $571,760 to the family trust.  It remained a debt due by the trust to the testator as at the date of death. 

GLEESON CJ:   Is it an oversimplification to say that the essence of the grievance held by your client is expressed in money terms by the difference between the amount of $571,760 and the amount of $228,240?

MR VINER:   No, because it required those two amounts to make up the price of the family farms.

GLEESON CJ:   I see, so it is the $571,760.

MR VINER:   Yes, that is right, your Honour.

GLEESON CJ:   And his complaint about the failure of his father to respond to the requirements of propriety in the circumstances is that his father should have left him, under his will, an amount or assets equal in value to $571,000?

MR VINER:   Not quite so far in those specific terms, but that his father made no provision for him.  In other words, he left him out of the will completely, having promised repeatedly that his son would inherit the family farm.

GUMMOW J:   But in the meantime – well, not in the meantime – it was sold in 1998 for $1.68 million.

MR VINER:   That is right, but our contention is that that is not relevant to the assessment of the circumstances as at the date of death, that is, the assessment of the relevant circumstances at the date of death.

GUMMOW J:   It had been purchased four years before for $800,000.

MR VINER:   That is right, yes, and that was at market value at arm’s length as matters then stood.  There was evidence accepted that the appellant, in the intervening four years, had both spent money and farmed the family farm in a way which considerably improved its value.  So it is not sufficient simply to do a mathematical calculation of the capital gain, but, as well as that, our contention is that that is irrelevant as at the date of death. 

So, in summary, the contention is that when one looks at the circumstances in which the son commenced farming with his parents, when he came into the partnership, brought his own money, and, of course, brought his own energy and effort, worked the farm for the benefit of the family as a whole during the following 15 years in circumstances where the promise had been repeated that he would inherit the family farm, when it came in 1994 to the appellant desiring to strike out somewhat on his own, to be acquiring property on his own, the testator said “No”, and that then led to the dissolution, but with the unfortunate result that the father did not honour the promise that had been repeatedly made. 

So for the appellant to extricate himself and strike out independently, he found himself in the position where he had to pay for what had previously been promised.  Then to be found that the money that he had paid still lay in the estate and would be distributed to his siblings without any provision being made for the appellant provides the basis for the appellant to say that all of those circumstances are relevant.  Add to it the significant contribution that he made to the building up of the estate.  So that, when no provision is made, it can properly be said that adequate provision for his proper advancement in life has not been made by the testator’s will. 

That gives rise to the question of whether the fact that the appellant did not base his claim on financial need – and accepting that he was not financially dependent, or in that sense in financial need – disqualified him from the otherwise legitimacy of his claim, and our contention on the authorities is that it does not disqualify him.  We have referred to a number of authorities, such as Goodman, Leiberman, Bosch, Justice Gaudron in Singer at page 227 and also the Victorian decision to which we have referred the Court, Blair.  All of those decisions confirm that an eligible person not in financial need may nevertheless have a claim, by reason of other circumstances, upon the bounty of the testator. 

GLEESON CJ:   What do you understand to be the point of departure between the reasoning of the majority and the minority in Singer?

MR VINER:   The point of departure perhaps, in the end, not being a matter of principle – that is, in terms of whether or not one uses the language of the gloss or does not use the language of the gloss – but the circumstances as they are judged by each of their Honours. 

GUMMOW J:   Justice Gaudron fixed at 228.5 on: 

The tendency of courts to overlook or undervalue women’s work . . . To my mind, that is what is involved in the failure to acknowledge the significant contribution involved when a wife gives up paid employment ‑ ‑ ‑

MR VINER:   The passage to which I was referring to Justice Gaudron was a little earlier at 227, in the second paragraph:

It is well settled that the preliminary question which arises . . . namely, whether the provision (if any) is inadequate, is to be determined in the light of all the circumstances of the case.  It follows, at least as a matter of law, that the issue goes beyond the question whether the applicant has needs and requirements that cannot be met from his or her own resources. 

GLEESON CJ:   A little earlier, at the bottom of 225 and the top of 226, she says:

The preliminary question . . . involve[s] considerable subjective assessment and may be said to call for the making of a value judgment.

MR VINER:   That is right. 

GLEESON CJ:   Where do the values come from?  What kind of values?

MR VINER:   The values come from the understanding and acceptance by the court at the different times of, I would say, social history, what are the currently accepted social standards of conduct expected of the particular testator in the particular circumstances that are before the court.  That may sound a very wide generalisation ‑ ‑ ‑

GLEESON CJ:   Take the case of a testator who has a wife who is a good deal wealthier than he is – I am not sure whether Singer v Berghouse was not such a case itself.  By recourse to what values do you make a judgment as to whether such a testator ought to make provision for his widow in his will?

MR VINER:   The values begin with the matrimonial or other partnership relationship, the courts make that clear.  Then to that is added the way in which they – and I express this broadly – have lived their life together, what the husband or partner has provided to the other and the circumstances in which that has been done, in some instances, if there are services, that is, caring of a particular kind by one to the other, if the wife who has substantial assets, which was the case in Singer – I think that phrase was actually used to describe her financial condition – if a partner has, notwithstanding that financial situation, lived in all respects with the husband or partner over many years, and whether, if the particular circumstances apply, the wife had contributed in one way or another to the building up of the assets, whatever they may be, of the husband or partner. 

All of those, in a sense, common relationships between people.  In Singer, her Honour, Justice Gaudron, made some comments there about the value to be placed upon non‑financial contributions by a woman to a household, indicating that in appropriate circumstances that may be taken into account as well, notwithstanding that the widow may have substantial assets.

Having said all of that, your Honour, it is saying no more than what all the cases have said, that one looks at all the circumstances pertaining to the claimant saying that they have not been adequately provided for and the claims of other persons on the bounty.

HAYNE J:   But if you leave the case of the indigent dependant to one side, where one might readily conclude that if such a person was left out of the will there was neither proper nor adequate provision made for maintenance, et cetera, is the exercise then an exercise in comparison?  That is, is it a comparison that you seek to have drawn between the demands, claims or however else you describe it, of the claimant and the demands or claims of those to whom the testator has, in fact, disposed of the property?  Or is it an exercise in measuring against some external standard?  Or is it both?

MR VINER:   I do not believe it is measuring against some external standard, because no external standard is stated in the legislation.  Therefore it becomes an exercise in judgment, according to the court’s judgment – and that is why it is so often said that these are very difficult cases – the court’s judgment of what current community standards would accept as right and proper conduct on the part of the testator.

GLEESON CJ:   But one of the changes that is taking place in our society at the moment is increasing financial independence on the part of women of their husbands.  The occurrence of the death of a husband whose financial circumstances are substantially weaker than the financial circumstances of his widow by no means requires any exercise of imagination.  Let us suppose that a court is faced with a complaint by a widow who has not been included in her husband’s will in those circumstances.  How does the court perform the value judgment referred to by Justice Gaudron?

MR VINER:   Without attempting to be exhaustive in the kind of considerations that would be brought to bear, I would suggest that the court in that situation would have to examine very carefully the way in which the two parties, husband and wife or partner and partner, lived within their common household.  It may, for example – and there is some element of that in Singer as to which one of the parties expended money on what kind of, if I may use the term, household requirements.  If there was, in the kind of situation your Honour has predicated, as I understand from other kinds of litigation I am involved in, for example, the common personal injury cases, you have a pooling of incomes.  This kind of situation is commonly found in assessment of damages in fatal accident cases, where there is joint income and certain formula have been applied by the courts to measure the damages suffered by one party who has lost the other upon whom they were mutually interdependent. 

So I think, your Honour, I could only answer that by saying that the court would be bound to do what it has always attempted to do, and that is to examine all the particular circumstances so as to identify for itself what it regards as relevant to whether the survivor of that partnership had a claim upon the estate of the other.  In that situation, one begins with the fact of the marriage, or, in modern and contemporary terms, one has to recognise the fact of the partnership of whatever it may be, and starting from that then work through all the circumstances to ascertain and determine whether or not it could fairly be said that, in this situation, there was a legitimate claim which had not been provided for. 

Now, that is saying and seeking to apply no more, in the kind of example that your Honour hypothecated, than was faced by the courts when able‑bodied sons and daughters began to make claims under this legislation.  So we go back to those cases which began with In re Sinnott and the statements by Justice Fullager there, and then the cases that came before this Court following In re Sinnott in which Chief Justice Dixon, who was involved in so many, such as Coates, McCosker and Scales, in all of which the Court had to grapple with what it should do in a situation of an able‑bodied son or daughter who had capacity to earn and provide for their own requirements and, as is developing, situations where the claimant has also assets.

GLEESON CJ:   Able‑bodied sons have for a long time been a source of problems in relation to this legislation, but now it also has to accommodate the position of able‑bodied de facto partners.

MR VINER:   Exactly.  That is why I was consciously using the term “partner”, because now, under the legislation, a de facto partner is an eligible claimant.

CALLINAN J:   Mr Viner, if everything you say is right as to the claim, why was it not satisfied by the $228,000 gift by the mother at the time of the settlement?  That is right, is it not?  She just gave her share to the appellant.

MR VINER:   Yes.  The reason is that it was her share to give, it was her independent property, and therefore ‑ ‑ ‑

CALLINAN J:   It was artificial, though, given the arrangements.  It was a family arrangement and she must have been conscious of what her son was getting and what her husband was getting and what their circumstances were.

MR VINER:   Indeed, but that was recognised by Justice Sheppard in those paragraphs to which he referred to this, and also by Justice McLure ‑ ‑ ‑

CALLINAN J:   Recognised as what?

MR VINER:   As one of the reasons why the testator did not take kindly, if I can use those words, to the dissolution, in circumstances where the mother, to enable the son to acquire the family farm, was prepared to fulfil her part of the promise in the face of the father not being prepared to fulfil his part of the promise.  So it is not relevant for the executors to point now to the fulfilment of the promise of the mother as a reason to excuse the father not fulfilling his share of the promise.

CALLINAN J:   Except, I think, is it not right that there is corroboration of the mother’s promise but not of the father’s promise?  Is there a finding in your favour that the father actually made those promises?

MR VINER:   Yes, there is, very clearly.

CALLINAN J:   Where do I find that?

MR VINER:   If one turns to Justice Sheppard at page 630 of the appeal book, at paragraph 46 and earlier.  Perhaps we should begin earlier at page 593 at paragraph 81 of the learned trial judge’s decision.  In that her Honour said:

I begin with Virginio’s position.  I have no reason to doubt Virginio’s evidence and I find that his father had on a number of occasions said to him words to the effect that he [Virginio] would inherit the Old Coach Road farm.

GLEESON CJ:   When was the last of those occasions, according to the evidence?

MR VINER:   That was not expressly found by her Honour, but the evidence was that it was repeated several times between 1978 and 1984.  If we turn to page 630, paragraph 46 of Justice Sheppard, who goes a little further, he said: 

She [her Honour] said that Virginio’s evidence was that, on a number of occasions from the time it was decided to buy the Albany Highway farm –

that is 1978, when the appellant entered into the partnership –

the deceased had said that at the end of the day, when the deceased died, “it would all be yours”.  On another occasion, when Virginio raised the question of his wages with his father, he was told he was only being paid a small amount because, when he father died, Virginio would inherit the family farm.  This was a reference to the Old Coach Road farm.  The deceased also said that Leopoldo –

that is the youngest son by about 15 years from the appellant –

would inherit the Albany Highway farm.  Her Honour said that the respondents agreed that they had heard their mother say on a number of occasions that the Old Coach Road farm would be Virginio’s some day.  But they did not hear their father make any similar statement.

Notwithstanding, her Honour accepted that the promise had been made and repeated on a number of occasions. 

Just to complete my point with regard to the line of cases where this and other courts have accepted that able‑bodied sons and daughters, capable of earning, and also with assets, may nevertheless claim, that line of cases, in my submission, should be followed by this Court in this case.  There is no reason to go back on what has been decided in earlier cases and seek to read down the very wide language of section 6(1) by making what would have to be an implication into those words which would be contrary to the way in which Lord Romer in Bosch said that these words should be read and understood. 

Now, the point about the promise having arisen in my exchange with the Court, it is appropriate to explain why her Honour the trial judge and their Honours in the Court of Appeal disregarded the promises, that is, dealt with them on the basis that they were irrelevant, namely, an irrelevant circumstance.  That is a fundamental point of our submissions to this Court and our difference with the trial judge and the Court of Appeal.  In paragraph 81, her Honour the trial judge, having made the finding to which I have taken the Court, went on to say:

However, this is not an estoppel action and if it was, no doubt it would have been necessary to explore whether the statements were based on any known assumptions (such as that the partnership would continue or that the members of the partnership would work together to build a family asset base).

In my respectful submission, her Honour was fundamentally in error in deciding that notwithstanding the finding she had made, it was necessary for the promise to be in the nature of an estoppel or for the appellant to pursue the promise by way of an estoppel action before such a promise could be a relevant circumstance in an application under section 6(1). 

Justice Sheppard picked up that point, firstly, at page 631 in paragraph 48 in reciting her Honour’s finding and noting her Honour’s statement that this was not an estoppel action.  Then towards the very end of Justice Sheppard’s judgment, at paragraph 100, his Honour observed:

Two matters relied upon in the appellant’s submission were continually emphasised.  Really, they are the two sides of the same coin.  One was “the promise” and the other, Virginio’s “moral claim”. 

Then he sets out the promise and the length that the appellant had been working on the family farm, from when he was 16 years and then as a partner in 1978 –

All this, so it was submitted, gave Virginio a compelling moral claim and, thus, an entitlement to have corrected the error made by the deceased in omitting him from the will.  Virginio’s needs either at the time of death or at the time the matter was heard were not a relevant factor. 

Now, that is because from the beginning the appellant said this is not a claim based on need. 

His Honour then referred to Singer and the timeliness of the warning of the dangers that lie in concentrating on the concept of moral claim, at the risk of getting too far away from the statutory language, and then continues at the end of paragraph 101 on page 649 in the last sentence:

Whatever place is given to the concept of moral claim in the overall scheme, these are the words which must eventually determine the outcome of all applications under the legislation –

namely, the actual words of the section, and with that, of course, there is utterly no disagreement.  The authorities are clear on that.  However, in paragraph 104, which is really the reasoning of the appellate court for rejecting the appeal and hence the claim:

There are some other factors which need to be weighed in the balance.  In 1993, father and son fell out.  They fell out, not because of any wish of the son, but because the father resented the son and his wife building up assets that were not partnership or company assets.  The father regarded Virginio’s obligations as being owed entirely to the family.  He was the eldest son; he would inherit the principal assets and he would, in due course, succeed his father as head of a traditional Italian family.  But the father’s decision to bring things to an end changed all that.  Virginio agreed to the dissolution, maybe unwillingly, but nevertheless, he agreed and the transactions which gave effect to it were all conducted at arm’s length.  Virginio came out of all this comparatively well off.  The bitter pill for him was that he had to pay a commercial price for the Old Coach Road farm when he believed all along that he was entitled to inherit it.  One understands this.  But, as her Honour remarked, this was not a case about estoppel.

But Justice Sheppard goes further than that to say:

It is not a case for breach of contract, nor does it involve a claim based on actionable misrepresentation. 

Now, the addition of those words, I would suggest, means that his Honour Justice Sheppard and their Honours who agreed with him required something in the nature of a promissory estoppel, a proprietary estoppel, a promise for consideration which gave rise to a contract or some basis for an actionable misrepresentation, before a promise and its correlative expectation, which arose in this case, can be regarded as a relevant circumstance.

It is at that point that we submit that both her Honour the trial judge and the appellate court were fundamentally in error in rejecting the promise and its non‑fulfilment and the circumstances in which it was made as a relevant circumstance to determine whether ‑ ‑ ‑

GUMMOW J:   Another circumstance is the continuation of the substratum on which this relationship has been erected.  That had broken down, and was resolved by this settlement method.

MR VINER:   It had broken down, but, as Justice Sheppard indicates, unwillingly on the part of the son but insistently on the part of the father.  So the son, being caught in the dilemma, having had that expectation, very soundly based over so many years, then finds himself not only having to pay the price for what had been promised, but that price being part of the estate of which he is completely cut out.

CALLINAN J:   Mr Viner, I do not understand – promises are made, but he seems to have received more than a third of the total amount of money that was derived in both income and capital during all of the relevant years.  I am looking at paragraph 84 on page 594.  In other words, he got money’s worth for everything he contributed.

MR VINER:   My response to that is twofold:  one, the passage by Justice Sheppard, to which I have taken the Court, in which his Honour accepted that the appellant had made a significant contribution to the building up of the deceased’s estate; secondly, that what the appellant received out of the partnership was what he put in, namely, his ‑ ‑ ‑

CALLINAN J:   A little bit more.

MR VINER:   Well, what is referred to as a little bit more is really incidental in the scheme of things.  In other words, the way the capital accounts ended up when the dissolution occurred, but that, in turn, would ‑ ‑ ‑

CALLINAN J:   All right.  Well, accept that he put in no less than what he got back.

MR VINER:   That is right.

CALLINAN J:   Why should he get more?  He got money’s worth.

MR VINER:   No.  If I may answer in this way, there are two concepts here.  One is whether a person is a salaried person and they receive fair remuneration for a fair day’s work.  The second is the commercial context of a farming partnership of this kind where each partner to a more or less degree contributes both physically and by their skill and intellect to producing income, and that income is then divided according to the terms of the partnership.  So what is the commercial outcome of the partnership is no more than what was put in.  One third aspect which did feature in this case was the acknowledged special skill and training that the appellant had as a wool classer and the heavy trading in sheep and cattle which he and his father entered into very, very successfully.

So my response to your Honour’s suggestion that why should the appellant – or, as I understand it, firstly, that he got no more than what he put in, therefore he ought not to have got more by way of the promise – my response to that is that the promise stands alone and of its own force and effect as a promise made by the father which created an expectation – a legitimate expectation, if I may use that term – on the part of the son.  Also, if I may emphasise, that promise made to encourage the son to enter into the partnership and not go off independently was repeated during the course of the partnership.  So with the partnership prospering, because of the contributions made by the appellant, the father was prepared to repeat the promise.

CALLINAN J:   You make it sound like an estoppel or a contract case when you talk that way and it is not.

MR VINER:   No.  I have sought to be very careful not to do that because the central point of my contention is that as a circumstance in the totality of this relationship between father and son and the totality of all the circumstances pertaining to that relationship, it was not necessary to establish an estoppel or a contract or an actionable misrepresentation.  To the extent that his Honour Justice Sheppard and her Honour the trial judge saw it in that way, they fell into error, because they excluded a relevant circumstance from their consideration.

CALLINAN J:   Is there any case that you know of in which a person has received money’s worth – and you know what I mean when I put that – but has still been able to recover something more on the basis of a promise as here? 

MR VINER:   Not, if I may put it this way, with respect, in that simplistic way, but if one looks at, for example, Coates, which was the case of the son of the woman who ran, I think, the Royal Hotel in Melbourne during the 1920s and the 1930s, but then left, went away to the war, came back and then found that very little had been left to him under a will made in 1932, that is an example of an expectation.  Hughes is another one where Justice Gibbs talks of an expectation as being a relevant circumstance.

CALLINAN J:   Is the arithmetic anything like the arithmetic here, though, in the sense of money’s worth being ‑ ‑ ‑

MR VINER:   No, but then one has to be careful because the value of money in those days was different to what it is today.  This is why it is our contention that the attempt by the respondents to identify so‑called benefits that the appellant received in the course of the partnership is not a relevant exercise because all those benefits came out of the input of the appellant into the partnership, directly from farming operations and also by reinvestment of surplus profits into what were called investment properties. 

So that failure of the learned trial judge and the appellate court to both identify and accept the promise and the consequences of its failure as a relevant circumstance is an error of law which goes directly to the heart of the consideration by those courts of the circumstances in this case.

GUMMOW J:   Your client had one child.  Is that right?

MR VINER:   One child, yes.

GUMMOW J:   Born 1988?

MR VINER:   Yes, I believe that ‑ ‑ ‑

GUMMOW J:   A son or a daughter?

MR VINER:   A son, yes.

HAYNE J:   Your discussion of the moral claim that you contend your client has makes no reference to any competing claim that the siblings had.  Is it relevant to have regard to the competing claims of siblings?

MR VINER:   Yes, it is.  That was acknowledged at trial and before the appellate court and I acknowledge it today as a relevant circumstance.

HAYNE J:   I understand the primary judge’s reasoning, particularly at paragraphs 132 to 133 at page 605, to be that your client derived significant financial advantage from his participation in the business.  The siblings’ financial circumstances are modest.  Their capacity to acquire substantial assets in the future is limited.  Your client’s asset position, as a result, I interpolate, of the advantages he derived, is very substantially superior to that of the defendant.  Is that so?

MR VINER:   That is so, and in money terms that is acknowledged.  If when, as her Honour set out ‑ ‑ ‑

HAYNE J:   So does it come to the proposition that because father promised to leave the farm before there was the family dispute which led to separation, the Court should now step in and, in effect, make good the promise which father made before there was the family dispute which led to the separation that occurred?  Is that the nub of it?

MR VINER:   I do not express it in exactly those terms, your Honour.

HAYNE J:   I know you do not, Mr Viner, I know you do not, but what is different?

MR VINER:   Well, the difference is that the appellant is not saying, “Give me back my $571,760”.  The appellant is saying that the promise should have been recognised and fulfilled by the testator as a wise and just testator in making his will and sharing his bounty, to which the appellant had substantially contributed, amongst all his siblings.  The appellant’s claim was put on the basis of equality, that is, by reason of the promise and the significant contribution the appellant had made to building up the estate of the deceased at a time, might I add, and during a period when those siblings were growing up on the farm and taking advantage of the contribution made by the claimant.  That equality of provision was adequate provision, or, in acknowledgment that there are some authorities which say equality is not necessarily the measure of a claim upon the bounty of a testator, such other provision as the court may think fit.

Now, I say that in recognition that there is a two‑stage process.  Our contention is that at the first stage, in acceptance of the promise and the significant contribution as relevant circumstances, the jurisdictional question should have been answered in the affirmative, and then, in exercise of discretion, if it was not to be equality, then some provision to take account of the promise and the comparative circumstances of the claimants upon that bounty – some other provision should be made by the court.  That is a more lengthy way of expressing the nub, your Honour.  That is the way in which it was presented to the court at trial and on appeal.

Now, I think in terms of the authorities before and after Bosch and before and since Singer, I have said what I wish to say to both expound the appellant’s view of how, in the face of Singer, these kinds of provisions are to be considered.  So fundamentally, absent language of the kind which had previously been used, the court nevertheless has to give some normative value to the word “proper”, and it does that by identifying what are the relevant circumstances in each case, giving a weight to each circumstance and then doing the evaluative exercise that courts have always done in cases of these kinds.

Now, in the course of that I have taken the Court to some of the pertinent findings of fact by her Honour the trial judge.  If I may briefly indicate to the Court where they are and the nature of the facts that are there found.  Firstly, at page 593 in paragraph 81 and following, to which I have referred – at paragraph 84, her Honour discusses the accounting evidence of the so‑called benefits, both income and capital, which the appellant received whilst a partner.  At paragraph 85, her Honour did not take into account, and, we contend, correctly, the gift made by his mother as a benefit.  I have responded to the question of benefits to your Honour Justice Callinan.  I will not add any more to what I have said there and what is written in the written submissions.

At paragraph 88, her Honour, in discussing the question of the benefits received from the partnership and the contribution of the appellant until 1994 – at the end of paragraph 88, her Honour accepted that:

the success of the farming business was greater than the sum of its constituent parts.  In that sense, each partner benefits from the joint efforts of the partners and more is achieved as a result of working in combination –

which is also to be read in conjunction with that part of Justice Sheppard’s judgment to which I have referred the Court, accepting that the appellant had made a significant contribution to building up the estate of the deceased.

Now, at paragraph 90, her Honour referred to a statement by one of the daughters as to the reason why the testator did not make any provision in his will for the appellant.  What is quoted there and in paragraph 91, that statement that:

“Virginio’s personal financial security has been assured by the fact that my father involved him in the farming business and allowed him to accumulate assets personally from this involvement.”

Her Honour said: 

This statement reflects an understandable perception that notwithstanding admission to the partnership, the accumulation (or more accurately, access to and use) of funds generated by the farming business remained within the mandate and bounty of the testator . . . However, this case must be determined within the framework of Virginio’s legal entitlements.

I would add one further comment there that it is clear from statements in Bosch and by Chief Justice Dixon in Coates that reasons of that kind, given via testator, for not including a member of the family in the will are immaterial and to be given no weight, because it is not the task of the court to look at such reasons – which may, of course, be many and varied – but to objectively consider what, in all the circumstances which are known or ought to have been known, the wise and just testator should have made for the proper maintenance, education, support or advancement in life of a member of the family.

Now, the financial position is set out from pages 596 and onwards and in that, at 598, the financial position of the beneficiary defendants.  Justice Sheppard gives a comprehensive narration of all the facts and circumstances, that is, the history of the family relationships, commencing at page 621 and following, and he has drawn certain conclusions which are more favourable, as I have indicated, to the appellant than perhaps some of those drawn by the learned trial judge.

Justice Sheppard in one respect goes further to emphasise something that was really passed over by her Honour the trial judge, and that is the sum of $571,760, which I have pointed out to the Court, which is referred to by Justice Sheppard.  Although speaking of an amount of over $500,000, it is the amount of $571,760, at paragraph 97 of his Honour’s judgment.

Now, the underlying consequence of the treatment of the facts by the learned trial judge and the appellate court in terms of the relevance of the promise is that both their Honours left the final judgment of theirs to whether there was financial need.  That appears, firstly, in the conclusion of her Honour Justice McLure in paragraph 131 and paragraph 134 of her Honour’s reasons.  At paragraph 131, her Honour said:

Virginio does not base his claim on financial need.  As a result, the focus of the case and the evidence has not been directed to his particular financial requirements or to any reasonably foreseeable contingences for which provision should be made.

She then refers to an observation that was made in the witness box by the appellant and goes on to say:

In the circumstances, and having regard to Virginio’s net asset position at the date of the testator’s death, I am not satisfied that Virginio had needs or requirements at the date of the testator’s death or which were reasonably foreseeable at that time, for which he was unable to provide from his own resources.

Then in paragraph 134 her Honour says:

Virginio is an adult of significant means, due in part to the opportunity given to him by the testator (and his mother) to participate in the farming business and the consequences of his participation and who has no proven requirements (present or contingent).

So it is clear that her Honour rejected the claim on the basis that the appellant had no needs or requirements, or no proven requirements.  In our respectful submission, her Honour was wrong, that is, made an error of law, in applying that as the test of whether adequate provision had been made for the proper advancement in life of the appellant.

So that for two reasons:  one because it ignores completely the relevance of a promise and the non-fulfilment of it and, secondly, it is contrary to that line of authority to which I have referred starting with – not so much starting but which had played such a significant part in decisions of this Court from the time of Chief Justice Dixon, that is Justice Fullagar in In re Sinnott and all the cases which say that an able‑bodied adult who does not have proven requirements may, nevertheless, be able to claim and establish a claim under the Act.  In that regard, I have referred to Lieberman as one of those cases and it may be noted that as well as the observations of Chief Justice Latham at page 81, there is the observation of Justice Williams at pages 91 and 92.  Now at page 81, Chief Justice Latham considered the argument:

that the Act was based upon or embodied public policy in being directed towards diminishing what has been called the public burden involved in the maintenance of necessitous persons.  The Act is not limited to such persons, though financial necessity is one of the circumstances which is taken into account by a court in dealing with applications under the Act.

Having observed that:

there are no Poor Laws in New South Wales –

in 1944, went on to say:

The statute, which was passed in 1916, enables benefits to be conferred irrespective of illness or age and indifferently upon widowers and widows.  I find it difficult to suppose that the statute was designed either to relieve the Commonwealth of possible liability for invalid and old-age pensions, or to diminish expenditure of the State under the Widows’ Pensions Act, which was not enacted until 1925.  It may be added that the Act authorizes provision for “advancement” as well as for necessary maintenance.

Now, Justice Williams at page 91 said:

The Act, s 3, sub-s 2, provides that the court may refuse to make an order in favour of any person whose character or conduct is such as to disentitle him to the benefit of an order –

I may interpolate here that it was accepted that there was no such conduct on the part of the appellant and that simply did not enter into consideration.  Justice Williams went on to say:

so that it is evident that the sole purpose of the Act is not to ensure that families who should be maintained out the estate of a testator are not maintained at the public expense.  Besides, in the case of large estates, provision can be made for the well-to-do.

So that it is our ‑ ‑ ‑

GLEESON CJ:   He describes the Act as having a “dominant purpose” on the top of 92.

MR VINER:   Yes, that is correct.  Yes, if we may follow that through:

But this is, in my opinion, part of the purpose, although it is subordinated to the dominant purpose, which is to enable the court to remedy a breach by a testator of his moral duty as a wise and just husband or father ‑ ‑ ‑

and so on.

It is because the Act is principally concerned with this dominant purpose that it recognizes that it is not in the public interest that this protection should be extended to those members of the class whose character or conduct is such that a testator is justified in regarding them as having no claim on his –

estate.  The significance of this case, along with the others, is that it is recognised that the language of the Act does not exclude a claim by an appellant in the circumstances of the appellant.  Therefore, it is always permissible, and, indeed, the Court should in appropriate situations consider other circumstances where it is not demonstrated that a claimant upon the testator’s bounty necessarily requires maintenance.  It cannot be said in this case that any of the deceased’s children necessarily need to be maintained from the testator’s estate.

So that where her Honour, absent accepting the relevance of the unfulfilled promise and the other circumstances of significantly contributing to the building up of the testator’s estate, rejects the claim on the basis that the appellant had no proven requirements was, in our respectful submission, an error of law.  We say that the appellate court in the judgment of Justice Sheppard fell into the same error for the same reasons and the conclusions of Justice Sheppard are to be found in the paragraph to which I took the Court earlier, namely, paragraph 104.

Now, in my submission, therefore, whether one looks at this case in terms of the glosses which the court have put upon these provisions, acknowledging that they are glosses but may be useful in certain cases, or putting aside those glosses and looking at the facts of this case solely in terms of what is proper, that is, right and appropriate or fitting, then their Honours in the courts below have made such errors of law by failing to take account of relevant circumstances that I have referred to, that their decisions should be overturned and that provision ought to have been made for the appellant out of the estate either on the basis of equality or on some other basis as this Court considers is appropriate to the circumstances.  May it please the Court.

GLEESON CJ:   You will not forget to give us that reference to the Interpretation Act for the Parliamentary materials?

MR VINER:   No, I think we have it now for you, your Honour.  It is the Interpretation Act 1984, section 18, regard to be had to “Purpose or object” and 19 is “extrinsic material” including Hansard. We have also, if I may one at a time, pass up copies of the relevant passages from ‑ ‑ ‑

GLEESON CJ:   Thank you.

MR VINER:   And if I may do this whilst I am on my feet, your Honour, I have copies of Hansard of 22 November 1939 and the second reading speech of the Bill on 23 March 1972 – the Bill by which the amendments were made.

GLEESON CJ:   Thank you.

MR VINER:   And there was some resumption of debate on that which is 4 May 1972 of which I can provide the Court with copies.

GLEESON CJ:   Thank you.  Yes, Mr Buss.

MR VINER:   And if I may bring to the Court’s attention for convenience, in the Hansard of 23 March 1972 at the first and second columns on page 273 in the middle of the first column there is the reference to:

society’s attitude to the right of a man, or of a woman, for that matter, to dispose of his or her property as he or she thinks fit even beyond doubt has changed.  There is now a feeling that a deceased is under some moral obligation to make provision for the maintenance, education, and advancement in life of persons who in the normal course of human affairs had a close personal relationship with the deceased . . . 

The aim of the legislation of this type is to do justice to dependants –

and so on.

GLEESON CJ:   Thank you.  Yes, Mr Buss.

MR BUSS:   Thank you, your Honours.  Your Honours, we propose to focus our submissions primarily on whether the trial judge made an error of principle in determining the jurisdictional issue adversely to the appellant.  Before commencing those submissions, however, there is one issue upon which your Honours may have, with respect, some misapprehension and that concerns the property that was purchased by the appellant under the deed of settlement in 1993 and the price that was payable by him or entities associated with him under that deed.  It is a point that I can clarify quickly and if may first invite your Honours’ attention to paragraph 45 of the trial judge’s reasons at page 583 your Honours will see there that her Honour says:

Pursuant to the Deed of Settlement the following transactions were effected:

(i)       the Old Coach Road farm was transferred from the testator and Rosaria to Virginio and Susan –

his wife -

as trustees of the VSV Family Trust.

Clauses (ii) and (iii) refer to transfers of property to the testator as does (iv), but (v) provides that:

the Company –

that the parties had previously formed -

sold some livestock and plant and equipment to Virginio for $212,454 and –

wool was sold to another entity.  In paragraph 46, her Honour then says that:

The purchase price of all the property sold to Virginio and Susan (as trustees) pursuant to the Deed of Settlement totalled $1,012,454.  After setting off the amount owed to Virginio (and Susan) by the testator as trustee of the Vigolo Family Trust for the purchase of their interest in the relevant properties and having regard to the value of Rosaria’s gift, the cash balance payable on settlement by Virginio and Susan was $251,737.

The point we make of course is that the cash balance that was payable was $251,000 and it was not merely the Old Coach Road farm that was being acquired but also some livestock, plant and equipment at a value of a little over $212, 000.

That is depicted as well, your Honours, in volume 2 of the appeal book at page 335 where your Honours can see that the properties that were purchased by the appellants related entity included the Old Coach Road farm for $800,000 and then four items further down there was the purchase of the “Plant & Equipment & Livestock” for $212, 454 giving a grand total of $1,086,000 when various costs and fees were included.  There is then set off against that the gift by Rosaria valued at $228,000‑odd and the various transactions under which the appellant sold his interest in various properties to the deceased and there is a net balance due of $251,737 which is the figure that the learned trial judge refers to in paragraph 46 of her reasons.

Now, in our submission, your Honours, an examination of the trial judge’s reasons does not reveal that any error of principle was made by her Honour.  Her Honour did not make any significant error in relation to the finding of facts and there is no basis, in our submission, on the basis of which the Court might be inclined to intervene because the outcome is so manifestly unreasonable that there must have been some error even though the error concerned is not one that is able to be precisely identified.

It is important, in our submission, to bear in mind that the trial judge was plainly cognisant of the so-called “moral claim” that had been put forward by the appellant as the basis for relief.  She noted the existence of that claim and its nature at several parts of her judgment, and she then evaluated that claim together with all of the other relevant considerations that she referred to in her judgment and in the end reached the conclusion that the appellant had not satisfied the first stage of the test and was of the view that it could not be said that the deceased had failed to make adequate provision for his proper maintenance or advancement in life, et cetera.

When the case came before the Full Court, the Full Court examined her Honour’s reasons in some detail and the court was unable to identify any error of principle.  Not only that, the Full Court was of the opinion that the learned trial judge was right in the view that she took.

Now, we acknowledge that the deceased’s promise, such as it was, that was made in relation to the Old Coach Road farm was a relevant consideration, but in all of the circumstances it was a consideration to which little or no weight should properly have been given and that that was so was because there had been no detrimental reliance on the property by the appellant.  There was no evidence that the appellant had foregone other opportunities that might have yielded to him a better financial position and the decision he made to leave school at 16 and go and work with his parents on their farm was not inconsistent with his own wishes.  By the time that he was 36 years of age he had managed to collate, through his own efforts and the efforts of his parents working in combination, a substantial asset, namely the Old Coach Road Farm which he then purchased and utilised under the arrangements entered into under 1993 deed of settlement.

Now, in those circumstances and having regard to the financial circumstances of his siblings it is not surprising, in our submission, that her Honour reached the decision that she did.  It is important to bear in mind, in our submission, that the word “proper” in section 6(1) of the Act does not relate to the enforcement of promises made by a testator in that any promise that is made by a testator may, as it was apparent from the decision of this Court in Barnes, be set aside in the sense that any promise made by a testator in relation to the proposed disposition of his assets is always subject to the power of this Court to make an order under section 6.

In our submission, the word “proper” in section 6 does not relate to propriety in the sense of the propriety of a person keeping a promise that they may have made many years before their death.  In other words, “proper” does not relate to the enforcement for its own sake of a promise by a deceased in relation to the disposition of his assets.  It is, of course, in the end an evaluation as to whether adequate provision has been made for someone’s proper maintenance or advancement in life and the concluding words of section 6(1) confer on the court in circumstances where there has not been adequate provision made for the proper maintenance or advancement in life of a claimant:

such provision as the Court thinks fit is made out of the estate of the deceased for that purpose –

“for that purpose” obviously relating back to the words “maintenance, support, education or advancement in life.”

Now, in our submission, there may have been some greater merit to the appellant’s claim had he been able to show some detrimental reliance or change of position but it is not apparent from the trial judge’s findings that there was any change of position by the appellant, certainly no detrimental change of position.  He was, indeed, given a substantial opportunity to enter into partnership with his parents.  He undoubtedly made the most of it, but this was not a case where the parents were made wealthy at the expense of the efforts of their son.  As her Honour noted, all three of them gained financial advantage by working in combination and that continued until there was a falling out between the deceased and the appellant and that led to the deed of settlement of 1993 and the appellant, then still a young man, went his own way and developed his own fortune alone.

It is important to bear in mind that of course the purpose of the legislation is not to redress a sense of grievance or hurt feelings or to promote family harmony and one can at one level understand that a son who has not been the subject of provision in a will may have hurt feelings and consider that this in some way reveals that his father did not have the love or care for him that perhaps the person assumes the deceased to have for others.  But that, of course, even if it exists and even if it is the least bit relevant in this case, simply as being as Justice Sheppard explained, the driving force for these proceedings, is not relevant in the least bit to the exercise of the court’s task under section 6.

The Court is simply obliged to respond to an application for relief and consider whether in all the circumstances the disposition of the deceased’s estate was or was not such as to make adequate provision for the proper maintenance, et cetera, of the applicant.  So it is that a promise that is made in relation to which there has been no detrimental reliance and in respect of which there are a host of other factors which indicate that adequate provision has been made for the proper maintenance or advancement in life of the appellant in this instance, that there is no basis for altering the terms of the will to make some provision for the appellant on the basis that he felt hurt and his feelings were injured by the absence of any provision for him by the deceased.

Now, in our submission, the words of the majority in Singer v Berghouse that have been referred to were intended, in our respectful submission, as a warning and a timely warning against straying from the words of the statute and seeking to determine cases solely by reference to glosses which understandably have been placed upon the words over many years of judicial decision making.

In our respectful submission, whether this case is determined by reference to any gloss that has been referred to or solely by reference to the text of section 6 makes no difference, in our submission, to the ultimate outcome of this case because it does not as a matter of substance change the point of principle by reference to which the trial judge’s reasons need to be evaluated.  In the end, there was no error of principle made by her Honour and one can readily understand why having evaluated all of the considerations that she had carefully referred to in her judgment that she dismissed the application.

Now, a feature and perhaps part of the rationale for an appellate court’s restraint in reviewing an exercise of a discretionary judgment of the kind under consideration here is that there will often never or often not be a uniquely correct outcome in determining an application under the Act.  There will often, in our submission, be a range of possible or permissible outcomes and within that range there may be legitimate differences of opinion.

In our submission, it is an acknowledgment of that fact that there is rarely a uniquely correct outcome and the public policy consideration that in litigation involving, at times, acrimonious disputes between members of a family and the ever diminishing size of an estate as a result of the accumulation of legal costs that an appellate court would, in our respectful submission, only intervene where there had been a plain error of principle made, or alternatively, some significant error of fact finding by the judge at first instance.  Now, it is our submission that in all of the circumstances the appellant has not demonstrated that the trial judge has made an error of principle and on that basis alone the appeal ought to be dismissed.

Your Honours, we have dealt in our written submissions in some detail and at some length with the various legal principles that we have sought to divine from the various cases on section 6 of the Western Australia Act and comparable statutes elsewhere.  Unless your Honours have particular questions to put to us we were not proposing to develop those submissions beyond what we have done in writing.

GLEESON CJ:   No, I could not help but smiling when I saw what appears on page 574C.

MR BUSS:   Yes, and possibly as well, your Honour, “Category:  B” which normally means that it is ‑ ‑ ‑

GLEESON CJ:   Not to be reported.

MR BUSS:   Yes, precisely.

HAYNE J:   One thing that I think we do not find in your submissions, Mr Buss, is a precise formulation of the order that you say should be made.  I see Mr Viner has given his formulation of the order that should be made were he to succeed.  You do not.  At some point we should have yours in answer to his, should we not?

MR BUSS:   Yes, I am sorry that we have not done that.

GUMMOW J:   And what is the estate’s position on costs?

HAYNE J:   That is why I asked.

MR BUSS:   Yes, the position at first instance, your Honours, is that her Honour the trial judge, when dismissing the application, ordered that each party bear his own costs and on appeal to the Full Court the Full Court dismissed the appeal and ordered the appellant to pay the respondents’ costs of the appeal.  Before your Honours we would, with respect, seek orders that the appeal be dismissed and that the appellant be ordered to pay the respondents’ costs of this appeal.  I should mention that this was something that ‑ ‑ ‑

GUMMOW J:   It is mentioned in the special leave.

MR BUSS:   Yes, his Honour Justice McHugh specifically took up my learned friend, Mr Viner, in relation to this issue of costs when the Court granted special leave.  Would that be a convenient time, your Honour?

GLEESON CJ:   No, we will sit on until 1 o’clock.

MR BUSS:   Yes, very well.

GLEESON CJ:   Is it the practice in Western Australia to make a special order for trustee’s costs, costs of an incident?

HAYNE J:   Paid or retained out of the estate?

MR BUSS:   I will just need to give that a little thought if I may, your Honour.

GLEESON CJ:   All right, well you can give us a note on this, Mr Buss.  Give us a note on what you say the orders we should make and why.

MR BUSS:   Yes.  Your Honours, what remains is really for me simply to correct an error that appears in our written submissions in dealing with the notice of contention and the error appears in paragraph 63 of those written submissions.  The error which can be seen in subparagraphs (a) and (b) is that it is said that the family farm in essence was an asset of the partnership.  That is not correct.  The true position is revealed in the reasons of the learned trial judge at paragraph 22 which is at page 578, where your Honours will see in the last line her Honour said:

The Old Coach Road farm is not shown as a partnership asset in the partnership accounts.

The true position appears to have been that although the Old Coach Road farm was not a partnership asset, it was nonetheless used by the partnership, and it was used by the partnership without the payment by the partnership

of any rent or other consideration.  That is a point that we touch on in the last sentence of paragraph 63(b) of our written submissions.

There is, however – the second error here is in relation to the transcript reference.  We have said AB 1 page 166C.  In fact, it should be 116C in volume 1, where there were some questions asked by the learned trial judge of the expert accounting witness called by the appellant.  At page 116C, her Honour asked the question:

Is there anything in the accounts in relation to the payment of rent by the partnership for the use of the real property?---No.

Your Honours, we will ensure that we have provided a short note in relation to the issue that your Honour the Chief Justice raised with me in relation to trustees’ costs.  Beyond that, the orders we would seek are simply that the appeal be dismissed and that the appellant pay the respondents’ costs to be taxed.  Those are our submissions.

GLEESON CJ:   Thank you, Mr Buss.  Yes, Mr Viner.

MR VINER:   May I make just some short responses, your Honour.  My learned friend has said that it is acknowledged by the respondents that the promise was a relevant circumstance.  From that we submit that that was not the way in which her Honour the trial judge, nor the appellate court, looked at it.  Both courts set aside the promise as relevant and did not have regard to it in reaching the conclusion that they did, in that ‑ ‑ ‑

GLEESON CJ:   I thought that they both said, “It’s true that there was a promise, but there was a good deal more to it than that”. 

MR VINER:   Well, as I submitted earlier, her Honour the trial judge cast it aside because it was not an estoppel that was being set up.  His Honour Justice Sheppard cast it aside because he said not only that, but it was not set up as a contractual promise nor an actionable misrepresentation.  Now, the clear implication of that, in my submission, is that both their Honours were saying the promise was to be ignored as not being a relevant promise because it could not be characterised in the way in which they described it.  There is nothing in the authorities to say, or even indicate, that a promise, to be a relevant circumstance in this kind of application, has to be of one of those characters. 

As my learned friend put it, he then went on to say, “However, no detrimental reliance was shown to have been placed on it”.  It was not shown that the appellant would have taken any action or conducted himself differently had the promise not been made, or his joining of the partnership was not inconsistent with his own desire to farm on the family.

Now, bear in mind that this is, firstly, a 16‑year‑old boy straight out of school who goes immediately to work on his parents’ farm.  Secondly, in the circumstances that are described, that in a slump soon after he commenced working on the farm at 16, he had to go off and find work around Albany, which he did, from which he was able to save and it was when he had saved and returned – that is, approached his father to say, “Well, look I want to go and buy my own farm” – that he was encouraged by his father to stay on the family farm in return for the promise that the family farm would be his by inheritance.

So it is unrealistic, in my respectful submission, to try to say that whilst it is acknowledged that promise, as a matter of fact, is a relevant circumstance, in this case ignore it for a young man of 16, and then at 21, because it did not satisfy the requirements of a promissory estoppel or contract or otherwise.  Either the promise was relevant or it was not, and the acknowledgment having been made that it is relevant, in my submission, it is demonstrable that neither the learned trial judge nor Justice Sheppard took the promise and the non-fulfilment of it into account as a relevant circumstance.

That a promise, express or implied, or an assumption as to a certain state of things is relevant may be seen from Justice Gibbs in Hughes v National Trustees at page 148.  Now, this was an appellant who was in very poor financial circumstances, but the principle enunciated by Justice Gibbs at that point, following his Honour’s earlier discussion of the principles applicable to cases of this kind, is pertinent.  At pages 146 and 147 his Honour first discusses what is described as “the classical statement in Bosch”, of the court placing itself in the position of a wise and just testator, doing all that ought to have been done in all the circumstances of the case, tracing through In re Allen, considering In re Sinnott and then more recent cases after that, Pontifical Society v Scales and others.  Then his Honour went on to say:

In other cases a son who has done nothing for his parents may have a special need.

Prior to that his Honour said:

In some cases a special claim may be found to exist because the applicant has contributed to building up the testator’s estate or has helped him in other ways.

We say that is the case here:

In other cases a son who has done nothing for his parents may have a special need.

Now, we have not said in this case that there is a special need by reason of financial need.  Then his Honour goes on:

He may have suffered a financial disaster; he may be unable to obtain employment; he may have a number of dependants who rely on him for support which he cannot adequately provide from his own resources.  There are no rigid rules –

which is a matter that I addressed in responding to some of the questions from the Court earlier.

GLEESON CJ:   That approach, which was agreed in by Justice Mason in Hughes on page 157, is very different from the approach of Justice Murphy on pages 158 to 159, which is the first of the footnotes in Singer.

MR VINER:   That is right.

GLEESON CJ:   Because Justice Murphy’s objection to the use of the concept or requirement of moral claim was that he took the view that on the true construction of the statute, a spouse or a child who had been left without provision in the will had a right to make a claim by a legislative judgment, as he calls it, unless the person was adequately provided for by independent means.  That was the point – as appears from the bottom of 158 and the top of 159 – of Justice Murphy’s problem with the use of the concept of moral claim.  He took the view that there was a legislative judgment of the existence of a claim in favour of people who were described as being entitled to make a claim, unless they were people of independent means.

MR VINER:   My further response to that is as in the written submission - I think it is in Hughes – that his Honour Justice Murphy used the phrase “as well” in conjunction with “moral claim” to suggest that what the courts were doing by the use of such a description was to add to what was required by the plain language of the Act.

GLEESON CJ:   He had a very distinctive view of what was required by the statute.

MR VINER:   Yes.

GLEESON CJ:   Is that a convenient time?

MR VINER:   It would be yes, your Honour.

GLEESON CJ:   We will resume at 2.00 pm, and I think that the next case will probably begin in a few minutes after that.

AT 12.58 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

GLEESON CJ:   Yes, Mr Viner.

MR VINER:   Your Honour, just before the luncheon adjournment I had taken the Court to Justice Gibbs in Hughes v National Trustees at page 147.  At page 148 his Honour, in referring to the circumstances of that case, noted that the applicant had:

since acted on the assumption that the farm would be his and was led to do so by the conduct of his parents, if not by their express promises -

which indicates clearly enough ‑ ‑ ‑

HAYNE J:   Yes, but you need to read on the next sentence, do you not, Mr Viner:

Wise and just parents, having allowed him to base his life on that foundation –

et cetera.  Here there was a familial rearrangement, was there not?

MR VINER:   There was but the consequence of – maybe, firstly, I make this observation that on the basis of the repeated promises the appellant based his life for 15 years on that foundation.  There was a family rearrangement but the consequence of that together with the fact that the appellant was left out of the will entirely means that the promise was neither fulfilled at the time of the rearrangement nor in any way by provision being made under the will which the appellant was entitled to expect rather than to be disinherited completely.

So that the mere fact of the family rearrangement does not nullify the relevance of the promise and its non‑fulfilment together with the factors I have referred to before lunch that the $571,000 that the appellant paid in lieu of receiving the promise remained a part of the estate and inured to the entire benefit of the appellant’s siblings.  I bring this reference to the Court’s attention to support the proposition that a promise of the kind that is before the Court is a relevant circumstance, and having been set aside as being relevant by their Honours, the trial judge and the author of the appellate court judgment was an error of law.

Your Honour the Chief Justice referred me to the judgment of Justice Murphy in Hughes and at page 158 is the statement that I referred to briefly before lunch and that is the observation by Justice Murphy that:

Many cases suggest that an applicant must show a moral claim as well –

quoting Bosch for that proposition.  With respect to his Honour the cases, Bosch and others which rely on it do not say that a moral claim must be shown as well.  What those cases do say is that in the circumstances there was a moral claim which a wise and just testator would have recognised and acted upon.

GLEESON CJ:   As I understand it, both in that passage and in the other passage in a later judgment which was also the subject of the footnote in Singer, what Justice Murphy was intending to reject was the idea that the reference to “moral claim” is not merely a summary of the effect of the legislation but is an additional element that has to be established, together with what the legislation actually speaks of.

MR VINER:   I understand that, your Honour, and my response to that is that that is not the way in which the cases express moral claim or moral duty, in other words, not as an additional factor but as a characterisation of what in the circumstances is proper.  The other point that I would make in response ‑ ‑ ‑

GUMMOW J:   So do you part company in any way from that decision of Justice Ormiston which seems to take Justice Murphy to task?

MR VINER:   No, I do not part company with Justice Ormiston.  My submission is that moral claim or moral obligation or moral duty may still be used to describe the circumstances of an applicant to characterise what is proper to have been done for the maintenance, education, support or advancement in life of the applicant.

GLEESON CJ:   It is not only the circumstances of the applicant that are relevant, it is the circumstances of the people at whose expense an application will succeed.

MR VINER:   Yes, indeed, because that is in all the cases acknowledged as a relevant circumstance.

GLEESON CJ:   And it is a phrase that is used to distinguish the circumstances, for example, of siblings from the circumstances of the Royal Blind Society or some other institution or charity to whom a gift is made by a will and the fact that the beneficiary in this State was a person or an entity to whom the testator owed no moral obligation may often be a relevant consideration.

MR VINER:   Yes, indeed.  So the essence of it in all is the requirement that all the relevant circumstances are to be taken into account.  I did note with regard to the two judgments of Justice Murphy, that is in Hughes and also in Goodman v Windeyer, in Goodman v Windeyer his Honour was dissenting but he has made his observations in both cases in reference to the phrase “adequate provision” and I note that in New South Wales at the time there was a requirement of the legislation to have regard to whether or not by independent means the claimant could adequately provide for him or herself.

So his Honour’s reference to the gloss was not so much in reference to the meaning of “proper” but to adequate provision.  The references to “moral duty”, “moral claim” and such like have been, as I understand the case, as more directed to what is proper than to the question of adequacy.  Nevertheless, as we know from the decision in Bosch and the statements of Lord Romer there, as they have been applied consistently in recognition that the words “adequate” and “proper” have their own meanings but are relative and interrelated to each other.

The other aspect that I would suggest to the Court in respect of Justice Murphy is that in the approach that he has taken they leave as many questions unanswered as they do in the statement that has been made by simply referring to the phrase “adequate provision”.  I say that having regard to the word “need”.  His Honour in Goodman v Windeyer quoted from Justice Hoare in Re Bodman saying:

“Unless the applicant can show that he or she was, at the relevant time, in ‘need’ of proper provision from the estate then the Court has no jurisdiction -

That word “need” does not appear in section 6(1) and it is a word which the courts have had considerable difficulty in applying to the various circumstances which come before the Court with these cases.  Justice Murphy, having made the observation about the gloss, nevertheless leaves unanswered as to what is meant by the word “need” and we see in the line of authorities where that is discussed as well as the words “adequate” and “proper”.

Bringing all that back to the facts of the case before you it is our contention that the existence of the promise was directly relevant to the question of whether proper maintenance, education, support or, in this case “advancement in life” had been provided having regard to the making of that promise.  So that is the first point at which the promise becomes relevant rather than at the point of adequacy of provision.

GLEESON CJ:   May I ask you a small question of fact, Mr Viner?  Page 325 is the settlement agreement, is that right?

MR VINER:   Yes.

GLEESON CJ:   I see on the back sheet of the settlement agreement the name of only one lawyer.

MR VINER:   That is right.  The evidence was that it was all done by – if I can put it this way – the family lawyer and the family accountant.

GLEESON CJ:   Was the evidence that the agreement of settlement was negotiated at arm’s length?

MR VINER:   Arm’s length in the sense that independent valuations of all the properties were taken.

GLEESON CJ:   But there was no separate legal advice?

MR VINER:   No separate legal advice, no.  It was all done, as I have said, through the one solicitor and the family accountant.

GLEESON CJ:   Now, nothing was made of that.  There was no attempt to make a case of overbearing or ‑ ‑ ‑

MR VINER:   No, it was simply the fact of the family situation, as Justice Sheppard has described where there was the disagreement, it had to be resolved some way and the accountant and the lawyer worked out the various distributions and that is how the creation of the Lino Vigolo Family Trust came to be made as part of the overall distribution of settlement.

In that regard, just in final response to my learned friend and a short response to your Honour Justice Hayne, your Honours will see from the settlement deed and the settlement statements that there was a rearrangement of interests not only in the family farm but other property which was owned in several different ownership partnerships between the

parties, including the appellant’s wife, so that that amount of $251,737 was the cash balance that the appellant required to find having made the changes of ownership and giving mutual credits and debits for other properties and interests in other properties changing hands.  The evidence of the appellant was that in order to – which is referred to in their Honours’ judgments – be able to complete the dissolution the appellant had to borrow over $300,000 to meet the cash balance, plus working capital.

There is only one other matter, your Honour.  I notice that in the Hansard reference of 23 March 1972 on page 273 there is a reference to a Law Reform Committee working paper, not to a report as such but a working paper dealing with the laws applying in other jurisdictions.  If the Court would like me to seek out that working paper I will certainly do so and provide it.

GLEESON CJ:   Yes, please.  Yes, thank you.

MR VINER:   Yes.  May it please the Court.

GLEESON CJ:   Thank you.

MR BUSS:   I am sorry, your Honours, there is just one minor point if I could raise – I meant to raise this before.  There are two typographical errors in the trial judge’s reasons and I should specifically draw them to the Court’s attention in case they are inadvertently reproduced.  There is one in paragraph 62 of her Honour’s reasons at page 590.  In the second‑last line “1988” should be “1998”.  The other error occurs on page 599 in paragraph 113 where her Honour says:

Leopoldo was born on 29 May 1970 and is 31.

That is an error and I will take your Honours to his affidavit in a moment, but it should be ‑ ‑ ‑

GLEESON CJ:   No, just tell us.

MR BUSS:   Yes, 29 May 1976 and is 25.  The reference is 383 of the appeal book for that.

GLEESON CJ:   Thank you.

MR BUSS:   Finally, in relation to the note that I mentioned to your Honours that we would provide in relation to costs, we will provide that by the end of this week which will be a minute of proposed orders and a note on the point your Honour the Chief Justice raised.  Thank you.

GLEESON CJ:   Thank you, Mr Buss.  We will reserve our decision in this matter and we will adjourn for a short time to reconstitute.

AT 2.17 PM THE MATTER WAS ADJOURNED