Queensland Judgments
Authorised Reports & Unreported Judgments
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Spencer v Burton

Unreported Citation:

[2015] QCA 104

EDITOR'S NOTE

Holmes and Gotterson JJA and Ann Lyons J

16 June 2015

This is a recent decision of the Court of Appeal which allowed an appeal dealing with a trial judge’s decision, eleven months after a four day trial, to revoke Letters of Administration on Intestacy over an estate.

Briefly the appellant originally obtained Letters of Administration on Intestacy on the basis that he was the deceased’s de facto partner. Five months later, the deceased’s mother filed an application seeking a declaration that the appellant was not a spouse or de facto partner of the deceased and orders that the Letters of Administration on Intestacy be revoked in her favour.

The trial judge made declarations and orders in terms of the application as his Honour was not satisfied, on the balance of probabilities, that the appellant and the deceased had lived together as a couple on a genuine domestic basis for the required two year period prior to her death having regard to the criteria enunciated in s 5AA of the Succession Act 1981 and s 32DA of the Acts Interpretation Act 1954.

In the lead judgment, A Lyons J (with whom Holmes and Gotterson JJA agreed) succinctly distilled the appellant’s twelve grounds of appeal as follows [37]:

“In essence, the appellant argues that the primary judge:

(a) did not come to terms with the evidence due to delay, and misconstrued or attributed little weight to significant aspects of the evidence and generally acted against the weight of evidence.

(b) erred in the application of the criteria set out in s.32DA of the Acts Interpretation Act and, in particular, attributed greater weight to financial and property matters.”

The Court allowed the appeal on both grounds. As to the former, it determined that the appellant established that the primary judge “failed to come to terms with the evidence”. [98]. Inter alia, the Court noted the trial judge analysed evidence of 20 witnesses “in very short compass” within seven paragraphs. [26]. It considered that: there was a body of evidence not referred to in the judgment [67]; various evidence was given little or no weight [79]–[81], [86]–[94]; some evidence was not taken into account when it should have been [96]; and the reasons for dismissing some of the evidence was inadequate. [96]

In relation to the latter, the Court stated:

“[123] It is clear that the criteria in s.32DA are all to be weighed up and analysed together with other factors or circumstances the judge considers relevant. It is also clear that one criterion is not to be considered more significant than any other. Neither is it necessary for all the criteria to be present in order for a declaration to be made. It is clear that the question as to whether two people are living together as a couple on a genuine domestic basis is to be determined by circumstances which include but are not limited to those listed in s.32DA.

[124] I am satisfied that the reasons given by the primary judge do reveal an overemphasis on financial and property matters and a discounting of the other indicia which were clearly present.

[125] I consider that has been an error in the application of the indicia set out in s.32DA of the Acts Interpretation Act.”

Consequently the Court set aside the primary decision and remitted the matter for determination by another trial judge. [140]. In noting the lapse of time since the death of the deceased (July 2012) and “the significant costs which have now clearly been expended on this appeal”, the “interests of justice require[d] that any new trial be given an expedited hearing”. [139].

Despite the respondent having filed an application to adduce further evidence and a notice of contention, the Court, in light of the well-established authority of Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, dismissed the application as it was not satisfied reasonable diligence occurred on part of the respondent, and held that documents could have been obtained prior to the trial occurring. [135]–[136] Because the notice of contention relied upon the admission of further evidence, the Court also dismissed it. [138].

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