Eatts v Gundy

Court of Appeal (Muir and Fraser JJA and Martin J)

28 November 2014

This is an interesting and important decision concerning the intersection of succession law and Aboriginal tradition. This matter arose following the intestate death of Doreen Eatts (the “deceased”). The deceased had been unable to have children and in accordance with the customs of her tribe, the Maiawali Karwali People, had informally adopted her sister’s child, Bradley Gundy (the “respondent”), and raised him as her own. Following Doreen Eatts’ death, pursuant to s 35(1) of the Succession Act 1981 (“Succession Act”), Joslin Eatts (the “appellant”), as her sole surviving parent, became entitled to the whole of the residuary of the deceased’s estate. The respondent filed an application seeking, inter alia a declaration that he took the whole of the deceased’s estate as the “surviving child of the intestate,” or, in the alternative, a declaration that adequate provision had not been made for him from the estate, and an order, pursuant to Pt 4 of the Succession Act, that the estate make the necessary provision. [3]. The appellant filed an interlocutory application for an order that the respondent’s application be struck out as an abuse of process, and at first instance, the trial court dismissed this application, holding that the evidence showed the respondent may be able to prove at trial “that he is a child or descendant and therefore the ‘issue’ of the deceased,” [4], and that “because according to Aboriginal tradition [he] was . . . [a] child of the deceased [he] was entitled to make a claim for family provision out of the estate,” id. The appellant appealed this decision, contending that the trial court had erred in its decision.

At first instance, and on appeal, the respondent argued that he was entitled to the whole of the deceased’s estate, pursuant to Pt 3 of the Succession Act, on the basis that he was her “issue” and “child” within the meaning of Pt 2 of Sch 2 and s 36A of the Succession Act; and, in the alternative, was entitled to provision under Pt 4 on the basis that he was a “child” of the deceased within the meaning of that section. [10]–[11]. Though his relationship with the deceased was not expressly provided for in the Succession Act, the respondent argued that his relationship with the deceased was encompassed by the Succession Act, as the definitions of “child” and “issue” were extended by the combined operation of s 36 of the Acts Interpretation Act 1954 (“Acts Interpretation Act”) which defines ‘Aboriginal tradition’ as “the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group . . .” and descendant as including “in relation to Aboriginal people – a descendant under Aboriginal tradition,” and ss 4(2) and 4(3)(j) of the Legislative Standards Act 1992 (“Legislative Standards Act”) which require that legislation have “sufficient regard to Aboriginal tradition and Island custom.” [22]–[24]. The Court, on appeal, was unable to accept this approach, and concluded that his claim failed “upon the correct construction of the statutory provisions” and that he did not have “more than a fanciful prospect of success.” [7].

In reaching this conclusion, the Court considered it significant that:

• The ordinary and prima facie legal meaning of ‘issue’ is “descendants or progeny” and that ‘child’ “usually connotes a descendant in the first generation.” [16], see [17]–[18]
• Any ‘extensions’ of the meaning of either term – ‘issue’ or ‘child’ – are expressly provided for in the relevant act. [17], [19].
• The Succession Act focuses upon biological relationships, only providing for succession beyond biology by specific provision. [19].
• The definition of ‘adopted child’ in the Succession Act which is confined to an adoption made in accordance with the law of the place where the adoption was undertaken. [20].
• Were the respondent’s construction to be accepted, a person could be both the ‘issue’ and ‘child’ (under Aboriginal tradition) of an intestate and (under the ordinary meaning of the terms in the Succession Act) the child of a brother or sister of an intestate who predeceased the intestate (s 35(1A)). [21].

Further, in response to the respondent’s argument that the ordinary meaning of both ‘issue’ and ‘child’ were extended by the definitions within the Acts Interpretation Act, introduced by the Legislative Standards Act, the Court held that the Legislative Standards Act simply had no potential application in relation to the Succession Act as it was intended to only operate prospectively. [24]–[26]. The Court also held that the respondent could not seek declaration as to his parentage under the Status of Children Act as this Act was concerned with resolving issues of disputed biological parentage, [28]–[31]. The Court concluded that “in the absence of any definition or even any reference in [the Succession Act] to Aboriginal tradition, the well-understood terms “child” and “issue” are not open to a construction which comprehends a biological nephew of an intestate on the basis that, in accordance with an Aboriginal tradition, the nephew is treated as a child of the deceased.” [36].

For these reasons the Court allowed the appeal and set aside the orders made in the Trial Division. [38], [40].