The Estate of Mark Edward Tighe

The late Mark Edward Tighe (“Mr Tighe”), a Kamilaroi man, died intestate at Quirindi on 15 February 2015. His only significant asset was his superannuation. He was not survived by any person entitled to his intestate estate under the Succession Act 2006 (NSW) (“the Act”). However, the applicant (“Mr Campbell”), also a Kamilaroi man, had been cared for by, and lived with, Mr Tighe’s family, and latterly Mr Tighe, for most of his (Mr Campbell’s) life. As far as Mr Tighe, Mr Campbell and their Kamilaroi community were concerned, Mr Tighe and Mr Campbell were brothers.

Relying on what was referred to in the evidence as that “kinship” relationship, Mr Campbell applies under the indigenous persons’ estates provisions in Part 4.4 of the Act for an order to give effect to a scheme for distribution that he be paid the entirety of Mr Tighe’s intestate estate (the “Estate”). Mr Campbell also seeks letters of administration of the Estate.

The evidence of Kamilaroi elders establishes that under Kamilaroi laws, customs, traditions and practices, it would be expected that Mr Campbell, as Mr Tighe’s kinship brother, would succeed to the Estate in the absence of any other family. Reasonable notice having been given, no other person has advanced a claim to the Estate. The only evidence of Mr Tighe’s testamentary intentions is that he nominated Mr Campbell as the beneficiary of his (Mr Tighe’s) AMP retirement savings account. Primarily by reason of those matters, the Court is satisfied that the distribution order sought by Mr Campbell is, in all the circumstances, just and equitable and that it should be made and administration granted to Mr Campbell.

The first application to be considered by the Court under Part 4.4 of the Act. was Re Estate Wilson Deceased [2017] NSWSC 1; (2016) 93 NSWLR 119 (“Wilson”). In that judgment, Lindsay J considered Part 4.4 and its origins in, if I may respectfully say so, considerable and helpful detail. I gratefully adopt his Honour’s analysis and will not repeat or refer to it in these reasons unless it is specifically necessary. This judgment assumes familiarity with his Honour’s reasons.

This case is only the second application to be considered by the Court. It was referred to me in chambers by the Probate Registrar, has not (after the provision of some answers to requisitions) raised any contentious legal questions, and is able to be dealt with on the papers as an uncontested matter. Nevertheless, because of the novelty of the jurisdiction, I propose to make some observations which may be of practical assistance in the preparation of subsequent applications.

Because circumstances are infinitely various, what follows in paragraphs [11] to [29] below are only general guidelines which may not be applicable to every case. I also offer them mindful of Lindsay J’s counsel against “undue formality” (Wilson at [118]–[120]) in relation to Part 4.4. It must also be noted at the outset that where, as in this case, the application under Part 4.4 includes an application for a grant of administration, the Court’s rules in relation to such applications must be complied with.

I will first set out a list of the matters to be considered, and if necessary, proven or established for the purposes of an application under Part 4.4. This is to some extent a consolidation and elaboration of the matters identified in Wilson at [145]. I will then say something about proof of Customary Law, before coming to the disposition of the present case.

Part 4.4 provides:

Two concepts are fundamental to an application of Part 4.4:

Proof of Customary Law is dealt with in paragraphs [30] to [36] below. At this point, it is sufficient to note that the applicability of Customary Law will need to be considered in at least five respects for any application:

In my view, Part 4.4 requires at least the following eleven matters to be addressed, although some will not be applicable in every case.

First, is the deceased an “Indigenous intestate”? That particular collocation of words is not expressly defined, but clearly invokes:

In terms of proof, it is important to note that the three elements of the definition of “Indigenous person” are cumulative. Insofar as s 102 is concerned, evidence of reasonable, unsuccessful search for a will must be provided. In addition to searching the personal effects of the deceased, as a minimum inquiries should be made of any solicitors known to have been instructed by the deceased or, if the deceased resided in a country area, the local solicitors generally; the deceased’s bank; and, the NSW Trustee & Guardian.

Second, can the application be made, having regard to s 133(3) of the Act (including whether an application for an extension of time is required)?

Third, to which Indigenous community or group did the deceased “belong”?

This will determine whose Customary Law must be considered. Because there was no issue about this in the present case, I do no more than note that in a particular case questions may arise as to when it was necessary for the deceased to “belong” to the relevant Indigenous community or group and what exactly is meant by “belonging”. These questions may themselves raise issues of Customary Law and have to some extent been considered in Wilson.

Fourth, is the application made by the personal representative of the deceased, or by a person claiming to be entitled to share in the deceased’s intestate estate under the relevant Customary Law? If it is the latter, then the person’s entitlement to make the claim must be established under the relevant Customary Law in order to satisfy s 133(1) of the Act. In my view, the words “claiming to be entitled” in s 133(1) require no more than to demonstrate that the claim is bona fide and arguable.

Fifth, have reasonable steps been taken to identify and notify all persons interested in the application? This will need to be proven by affidavits identifying how it is said the persons are interested. This will generally be because they may be entitled in some way to make a claim or that their interests will be adversely affected by the orders sought. In my view, except where it is for some reason impracticable or will cause undue expense or delay, interested persons should be personally served with notice of the application and affidavits of service filed. Furthermore, because the application of Customary Law is a matter of general interest to the relevant Indigenous community or group, applications under Part 4.4 should be advertised in newspapers circulating in the country of that community or group by analogy with the procedure that was used for publication of notice of intended applications for probate or administration before the introduction of the online registry website. For what was done in the present case, see paragraph [49] below.

Depending on the facts, interested persons will include (and these categories may overlap):

The previous paragraph is intended to demonstrate that an application under Part 4.4 may require notice to persons over and above those to whom notice is normally required to be given under the Court’s rules for an application for letters of administration of an intestate estate. The task will be to identify those persons who may have an entitlement to the deceased’s estate (whether under the Act, the relevant Customary Law or by reference to broad factual or moral considerations) or whose interests may otherwise be affected by the application. Who those persons are, and where they are likely to be, will depend on the facts of the case and may require consideration of the relevant Customary Law and other evidence, for example, about where members of a particular Indigenous community group may be located. As was done in the present case, regional newspaper advertisements may be required to notify potentially interested persons of the application.

In relation to the question of notice (as well as the substantive consideration of any application), it is convenient to set out part of Lindsay J’s list in Wilson at [145]:

Where no one is entitled to take on intestacy under the Act, there should, as far as possible, be proof of that fact.

Sixth, whether there is any property in respect of which an order under s 134(2) may be sought?

Seventh, the order or orders for distribution of the estate that are sought. Sections 133(1) and 134 make it clear that it is the order or orders for distribution which are sought that are the ultimate focus of the inquiry in an application under Part 4.4. While the scheme for distribution is obviously an important part of the application, it is not a substitute for the orders sought. Those orders should be clearly specified in the summons and, in my respectful view, an order to the effect that “the estate be distributed in accordance with the scheme of distribution annexed and marked ‘A’” should be avoided.

Eighth, is the application accompanied by a “scheme for distribution”? While noting Lindsay J’s observation in Wilson at [162] that the requirement of a scheme for distribution is a matter of substance and not form, in my respectful view, the “scheme for distribution” under s 133(2) of the Act should be set out with particularity, attached to the summons and identified as such. It should specify the Indigenous community or group whose laws, customs, traditions and practices are being relied upon. These steps will assist with the efficient consideration of any application.

Ninth, is the scheme for distribution of the estate “in accordance with the relevant Customary Law”? As to proof of this, see paragraphs [30] to [36] below.

Tenth, why should the Court be satisfied that the terms of the proposed distribution order are, in all the circumstances, just and equitable? The Court must be positively satisfied of that matter before it can make an order. Lindsay J considers this requirement in Wilson at [135]–[136]. The scope of matters to be taken into account is obviously broad but must, by reason of ss 134(3) and 135, include the proposed scheme for distribution, the relevant Customary Law and what the outcome would be under the Act in the absence of an order under Part 4.4.

In my respectful opinion assistance in understanding the application of s 134(4) may be derived from the judgment of the plurality in Stanford v Stanford [2012] HCA 52; (2012) 247 CLR 108 (“Stanford”) at [35] and following. That case considered the property settlement provisions of the Family Law Act 1975 (Cth), in particular s 79(2) that “[t]he court shall not make an order under this section [for the alteration of property interests] unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”.

Eleventh, should an order be made in the exercise of the Court’s discretion under s 134(1)? It is not necessary for me to express any view, and I refrain from doing so, as to whether, on the proper construction of the Act, the Court retains a discretion not to make an order under s 134(1) even when it is satisfied under s 134(4) that the order is, in all the circumstances, just and equitable. The possibility that there may one day be a case where that point is more than just academic cannot be completely excluded, for example where an outcome supported by the applicable Customary Law may arguably be contrary to some other aspect of public policy.

In Wilson, Lindsay J said:

I do not disagree. However, I make four, additional observations.

First, in my respectful opinion, as a matter of general practice applications under Part 4.4 should, whenever possible, “include evidence from one or more senior members of the intestate’s community or group, or evidence prepared or endorsed by a Local Aboriginal Land Council” as to the customary law governing succession or any of the other matters referred to in paragraph [10] above. This is not to diminish the possibility of proof in the way described in paragraph [156] of Wilson. However, clear evidence of the kind to which I have referred will be of particular assistance in the determination of uncontested applications. So it was that in Application by the Public Trustee for the Northern Territory [2000] NTSC 52 Martin CJ was able to observe:

Second, where such evidence is given by a member of the deceased’s Indigenous community or group, that evidence will have the benefit of these provisions of the Evidence Act 1995 (NSW) (the “EA”):

The dictionary to the EA provides that “traditional laws and customs of an Aboriginal or Torres Strait Islander group (including a kinship group) includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group”.

Third, insofar as evidence of the relevant Customary Law is sought to be given by a person who is not a member of the deceased’s Indigenous community or group, then consideration will need to be given whether such evidence is opinion evidence that would be admissible as an exception to the opinion rule under s 79 of the EA.

Fourth, the exclusionary discretions under ss 135 and 136 of the EA and the power to waive the rules of evidence under s 190 of the EA may need to be considered in any particular case.

In addition to affidavits from Mr Campbell and his solicitor, the application is primarily supported by the affidavits of Christine Allan, Neville Sampson and Jason Allan. Ms Allan and Mr Sampson describe themselves as respected elders of the Kamilaroi people. Mr Allan describes himself as a “proud Indigenous man of the Kamilaroi people” and is the CEO of the Local Aboriginal Land Council at Walhallow, being the community where both Mr Tighe and Mr Campbell were raised and lived. Their evidence was largely to the same effect and I shall refer to it, without any disrespect intended, as the “Kamilaroi evidence”. Each of these three deponents had known Mr Tighe and his family, and Mr Campbell, since at least the time when Mr Campbell came to live with Mr Tighe’s grandfather, Alfred John Tighe. The evidence also included extracts from records of the Department of Family and Community Services relating to the out of home care placement of Mr Campbell with Mr Tighe’s family.

Mr Campbell came into care when he was less than one year old, apparently having been abandoned by his mother. The identity of Mr Campbell’s father is unknown. Mr Campbell was made a ward of the Court when less than two years old and was subsequently placed in the care of Alfred John Tighe, Mr Tighe’s grandfather and Mr Campbell’s maternal great-uncle. It follows that Mr Tighe and Mr Campbell were distantly related.

Alfred John Tighe had one daughter, known as Jeanette or Jenny (no disrespect is intended in using her given name), who was the mother of Mr Tighe. Mr Campbell was raised by Jenny, who he regarded as his mother. Mr Tighe was 12 years older than Mr Campbell and regarded the latter as his younger brother. Mr Campbell was placed in the care of Jenny after the death of Alfred John Tighe. On Jenny’s death Mr Campbell was placed in the care of Mr Tighe.

Against the background of those basic facts, I will now consider the application by reference to the matters which I have set out in paragraphs [12] to [29] above.

The Kamilaroi evidence clearly establishes the three elements of the definition of “Indigenous person” in s 101 of the Act in relation to Mr Tighe. In addition to the anecdotal and observational evidence provided by the Kamilaroi evidence, that evidence includes (and I have relied upon) a document executed by Mr Allan on the letterhead of the Walhallow Local Aboriginal Land Council headed “Confirmation of Aboriginality”. That document states:

I am satisfied that the Court is entitled to rely on that “Confirmation of Aboriginality” by reason of Mr Allan’s many years of personal knowledge and observation of Mr Tighe.

Insofar as intestacy is concerned, Mr Campbell has provided affidavit evidence of unsuccessful searches of the kind referred to in paragraph [3] above.

By reason of the matters set out in paragraphs [41] and [43] above, the Court finds that Mr Tighe is an “Indigenous intestate” under Part 4.4 of the Act.

No grant of administration having yet been made, the potential time limitation imposed by s 133(3) of the Act is inapplicable. The application is therefore able to be made without any other order.

The Kamilaroi evidence and Mr Campbell’s affidavit satisfy the Court that Mr Tighe belonged to the Kamilaroi Indigenous community or group.

By reason of the Kamilaroi evidence (see paragraphs [55] and [56] below), the Court finds that Mr Tighe has a bona fide and arguable claim to be entitled to the Estate under Kamilaroi Customary Law. He is therefore entitled to bring this application.

By reference to the categories referred to in paragraph [19] above, the Court concludes:

Because the evidence did not disclose any other specifically identifiable person who might on any view be entitled to Mr Tighe’s intestate estate other than Mr Campbell, the Court required only a general form of notice of the application to be published in the Sydney Morning Herald and in those regional newspapers which regularly circulate in Kamilaroi country. Mr Sampson gave evidence of what areas were generally accepted as Kamilaroi country.

The notice stated:

No one other than Mr Campbell has come forward claiming an interest in the Estate or otherwise indicating a desire to be heard.

There is no property in respect of which an order under s 134(2) may be sought.

Without intending any criticism of anyone, the application has undergone something of an evolution. It was originally filed under a summons for administration claiming that Mr Campbell was Mr Tighe’s next of kin. The application was originally refused because it was apparent that, at least for the purposes of the Act, Mr Campbell was not eligible under the intestacy provisions. The Probate Registrar drew attention to the possibility of the application being made under Part 4.4. That was done by the provision of further evidence, including in response to requisitions raised on my direction. Because of this, the orders for distribution that were sought were not formalised in any court process. However, it was apparent that the distribution order sought was for the Estate to be paid to Mr Campbell.

In response to requisitions, the scheme was provided as an annexure to one of Mr Campbell’s affidavits:

The Kamilaroi evidence (including a Confirmation of Aboriginality similar to that referred to in paragraph [41] above) and the evidence of Mr Campbell himself establish that he is an Indigenous person both in the eyes of the Kamilaroi community and, to the extent it may be relevant, for the purposes of the definition of an “Indigenous person” under the Act. That evidence also establishes, and the Court finds, that for the entirety of their lives together Mr Tighe and Mr Campbell regarded each other as brothers and were accepted as such by the Tighe family and the broader local Kamilaroi community. Independent evidence of their relationship is provided by the documents in evidence from the Department of Family and Community Services, which refer to the brotherly relationship between Mr Tighe and Mr Campbell. This was one of the main factors referred to in the Department’s files as supporting the conclusion that it would not be in Mr Campbell’s interests to be removed from the care of the Tighe family.

On the basis of the relationship between Mr Tighe and Mr Campbell, the Kamilaroi evidence is unanimous in its conclusion that it is in accordance with Kamilaroi law, custom, tradition and practice for Mr Campbell to succeed to the Estate. It is sufficient for present purposes to refer to Mr Sampson’s affidavit, in which he deposed.

By reason of the foregoing, the Court finds that the scheme for distribution set out in paragraph [54] above is in accordance with the laws, customs, traditions and practices of the Kamilaroi community or group to which Mr Tighe belonged.

The analysis must begin with Lindsay J’s observation in Wilson at [136] that the language of s 134(4) “is a classic means of invoking jurisdiction essentially equitable in character”. In addition, drawing on and paraphrasing the plurality’s consideration of a provision similar to s 134(4) of the Act in Stanford (see paragraph [28] above), I approach this question acknowledging that the expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. Nevertheless, while it is not to be exercised in accordance with fixed rules, at least three consequences flow from the Act itself, in particular ss 134(3) and s 135.

Those consequences are, first, that the Court must consider the scheme for distribution itself; the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged; how the estate would be distributed under the Act but for Part 4.4; and all other circumstances which the Court considers relevant. Second, while s 134(1) confers a broad power on the Court to make a distribution order, it is not a power that is to be exercised according to an unguided judicial discretion. It must be exercised rationally in accordance with legal principles, including those which the Act itself lays down, and for the purpose for which it was intended. In the present case the Court should, therefore, not start with the assumption that the Estate should be dealt with differently from how it would be dealt with under the general provisions of the Act to the extent they apply. Third, nor should the Court start with the proposition that the applicant has a right to the distribution order insofar as it has been established that the order is in accordance with the relevant Customary Law.

Bearing in mind the matters referred to in paragraphs [58] and [59] above, the Court is well satisfied that, in this case, it is just and equitable for an order to be made that the Estate be paid to Mr Campbell. The distribution scheme and the Kamilaroi Customary Law unequivocally support that outcome. Furthermore, but for an application under s 137 of the Act, the Estate would pass to the State pursuant to s 136 of the Act. That would be an unjust and inequitable result in the face of what is, quite apart from the situation under the Kamilaroi Customary Law, an overwhelming familial and moral claim to the Estate by Mr Campbell based upon his and Mr Tighe’s, in effect, lifelong relationship as brothers. To this must be added the fact that there is no one else with a legal, customary or moral claim to the Estate.

For the foregoing reasons, the Court is well satisfied that an order for the distribution of the Estate to Mr Campbell is, in all the circumstances, just and equitable for the purposes of s 134(4) of the Act.

Having regard to all of the circumstances recited in these reasons, and conscious of the absence of a contradictor, I am nevertheless unable to conceive of any reason why an order for distribution in accordance with the scheme of distribution set out in paragraph [54] above should not be made once the impediment posed by s 134(4) has been overcome.

For this final point of the analysis it is, with respect, useful to recall the way in which the ultimate question was posed by Lindsay J in Wilson:

For the reasons set out in paragraph [60] above, and supported by the fact that the only evidence of Mr Tighe’s testamentary intention (see paragraph [48(5)] above) also firmly points to Mr Campbell, the Court answers the question posed by Lindsay J in the circumstances of this case by concluding that Mr Tighe would have made a will leaving his estate to Mr Campbell. The Court will exercise its discretion under s 134(1) by making an order that the Estate be distributed by payment to Mr Campbell.

The orders of the Court are: