An infamous decision

A passing comment by a colleague has reminded me of the case of Benney v Jones.

This is a 1990 case involving Mr Benney, who claimed to have been the homosexual partner of Mr Read, who had died suddenly in December 1988 in his early sixties. Mr Benney made a claim for provision under the Family Provision Act. The will was in favour of Mr Read’s younger sister, Ms Jones, who was the defendant to the application. She denied that Benney and Read were lovers or that Read (who was about 20 years older than Benney) was even gay. It does not appear to have been disputed that Benney was gay.

You can read the appeal at (1991) 23 NSWLR 559. The appeal failed because of the factual findings by Justice Young at first instance, which is why his judgment remains of interest. That judgment is unreported, but available on Lexis-Nexis (BC9002739) for a fee.

At the time this case was heard, the law did not grant any recognition to homosexual relationships. Gay people, rather in the way that the religious right want to keep things with their present push for “interdependent” relationships rather than anything which resembles marriage, were forced to apply on the basis that they were persons who had been:

(a) living in the same household as the deceased; and
(b) dependent upon the deceased; and
(c) there were “factors warranting the application.”

The last element has generally been held to require some further factors other than barely qualifying at the threshold level which would bring the claimant within a class of persons for whom the community would generally expect the deceased to have made provision.

These are the same sections that step children are required to resort to, even in cases where they have been brought up from infancy as the child of their step-parent. Generally in those cases some kind of award would be made to a claimant with needs unless there were competing claims of the natural children or widow.

Of course, all applications require the claimants to show that they have been left without adequate provision by the deceased. What is adequate provision will generally depend on a person’s financial needs on the one hand, and the size of the estate and competing claims to it on the other.

But back to Benney v Jones. In what follows I am mostly paraphrasing Young J’s judgment as to the facts and some of the evidence.

Benney and Read knew each other for many years. Benney said they first met on Good Friday 1972, shortly after which they formed a close relationship. They did not live together, time to time one would stay in the residence of the other (including two periods where Benney stayed at Read’s for a few months), or together they would stay at the residence of other persons.

Read was a keen breeder, exhibitor and judge of birds including softbills, finches and Australian native birds. Benney also developed an interest in birds, particularly zebra finches and rosellas.

In 1983/1984 (about the time when Read seems to have retired from regular work) they considered that it would be nice to live in the Hunter Valley where they could enjoy better conditions for the breeding of birds. A suitable property was found in late 1984 and in 1985 the parties arranged to sell their homes and the idea that they had was that they would purchase this Hunter Valley property in equal shares.

The property, at Rothbury, was purchased for $65,000.00 plus legal and other expenses. On 20 March 1985, Read borrowed approximately $8,000.00 on his bankcard and had this amount paid to his solicitors to form the deposit for the Rothbury property. On 29 March 1985, Benney retired from the bank (he was then 38) and received his $35,000.00. Benny did not contribute any of this money to pay for the house at this time.

Read received the proceeds of the sale of his home at Cammeray in April 1985 and completed the purchase of Rothbury in his own name on 20 June 1985. Read paid the whole of the purchase moneys for Rothbury.

Read and Benney moved into the Rothbury home on 21 June 1985.

In May 1986 Benney sold his home. When the plaintiff received the money from that home, he discussed with Read the building of a new home on the Rothbury land up the hill. There was a proposal at one stage that Benney would pay for the new house and that on doing this he and the deceased would be co-owners of the Rothbury property. Read consulted a solicitor who advised the deceased that the whole property should be valued and that the plaintiff must pay one-half of the cost of the then value of the land plus the new home. Benney was not prepared to do this.

Renovations were, however, effected to the existing home at Rothbury during April 1987. Benney spent approximately $6,000.00 on various building materials for the property and also bought a tractor for about $4,000.00 and a ride-on mower for $2,750.00. These remained his property.

Read died of “cerebrovascular accident” (a stroke, I think that means) on 16 December 1988.

Justice Young held that there was no doubt that Benney was homosexual.

However, the relevant question for the statutory test was the nature of their life together once they both lived at Rothbury. Whether or not they were in a homosexual relationship was a part of this, although even that was not sufficient.

Benney bought the groceries and Read bought the meat.

Miss Read, whom Young described as the deceased’s “step-niece,” stayed at the property once for 4-5 weeks and went grape picking with Read. She presumably gave evidence for the family which stood to benefit from the will. She said that on this occasion she and Read did all the shopping.

Read and Benney lived different lifestyles. Miss Read said that her “step uncle” was a person who had retired, enjoyed looking after his birds, doing gardening and looking after the house, and who liked to go to bed early and rise early. Benney, on the other hand, played squash one or two nights a week, went out to see his friends other nights, and often would come home at 2am in the morning. He would then sleep until late in the morning because he worked the late shift at the winery. When they were at home together the they would dine together, but more often than not the deceased would go off to bed early and the plaintiff would continue to stay up and watch television. Benney drove. Read did not drive but Benney drove him to many venues including places throughout the State where the parties would exhibit birds together.

Well, to me, the position as to a gay relationship of some sort is objectively pretty self-evident, absent convincing evidence to the contrary. Even more the statutory tests of living as part of the same household and (given that Read owned the house) being financially dependent. But that is not the way that Justice Young saw it. As a starting point, he said:

There is a lot to be said for the proposition that we here have two gentlemen who have a common interest in birds sharing the same house. Both find it congenial to live at Rothbury, one because he can enjoy his birds, the other because he can have a social lifestyle and work virtually part time in the afternoons and weekends, yet still live well.

Benney said: “the extent of our relationship, which lasted until the deceased’s sudden death, was only disclosed to a few of our close friends.”

This was supported by:

1. Mr Jackson, Benney’s previous sexual partner, who saw that the Benney kissed guests and danced with the Read at a party, and they seemed to be sharing a double bed, at least at one stage. some time between 1974 and 1980.
2. Mrs Burt who said that at many functions she attended where there were a number of homosexual persons present she observed the the two holding hands, cuddling and dancing.
3. Mr Richards who said that on one occasion Read said to him that he loved Benney and added “Since we decided to live together we have got to know each other more intimately and my love for him has become deeper.” He also said that it appeared that Benney and Readshared a double bed when they stayed on one occasion at his home.
4. Mr Wood who gave evidence of a similar occasion when the men apparently shared a double bed.
5. Mr Bastin, who said that he could see a closeness between the plaintiff and the deceased including touching each other on the arm or shoulder (though he observed that the deceased and the plaintiff occupied separate bedrooms at Rothbury).
6. Mr Stratford who said that he noticed that the deceased and the plaintiff touched each other, but nothing more than that. He remembered when he moved the plaintiff and the deceased up to Rothbury in his truck they patted each other on the leg.
7. Mr Jackson, who has some knowledge of wills and trusts, who swore that just before Read and Benney went to Rothbury they both said to him, “We are thinking of the best way to buy the home together” and asked his advice as to the way that should be done.
8. Mr McAuley, who said that he was a life long friend of Read: they shared a common interest in birds. He visited the deceased and the plaintiff at Rothbury and described their relationship as “a husband and wife relationship”. However, it seemed from cross examination that he meant by this that the plaintiff went out to work and the deceased stayed home and did the housework and the gardening. [Note: this sort of use of answers in cross-examination is quite misleading because what it means is that that is what Mr McAuley agreed he actually observed.]
9. Read’s elder sister, Mrs Violet Hawkins, who said that she had seen the plaintiff and the deceased kissing each other on the lips.

 
Justice Young described Ms Jones, Read’s younger sister, as

“a lady who obviously holds the view that homosexual behaviour is unacceptable. She adored her late brother and considers that his memory is sullied by the allegations made by the plaintiff.”

What her feelings had to do with it is unclear: clearly, she also stood to lose some part of the estate left to her if the claim was successful.

The first line of Ms Jones’ defence was that Mr Read was in a loving relationship with a woman, whom he had been seen kissing and cuddling. (This is also a common line of defence against, in particular, heterosexual woman claimants: you were not the only one; there were others.) The woman in question:

denied a sexual relationship and explained that the kissing had been at the exchange of the peace in Church and other kissing and cuddling had been at a time after the deceased’s death when the lady, who described herself as a good friend of the plaintiff, considered that he needed some solace. She gave evidence that the plaintiff had more or less told her that he was homosexual and she recognized they could be no more than good friends.

Apart from Miss Read’s evidence already referred to above, the other key points for the defendant were:

1. Benney had never ever said even in evidence that there was a sexual relationship, but only that he, the plaintiff, was a homosexual and there was a “loving relationship;”
2. Benney had never said to anybody until after the deceased’s death that there had been a homosexual relationship;
3. when Miss Read went to wake her uncle early in the morning to go and pick grapes she found him sleeping alone;
4. Mr Harris, “a man now in his eighties [who] presented himself as a vigorous and zestful gentleman” said he was a lifelong friend of Mr Read’s and described his relationship as a “father-son” relationship, visited Rothbury about once a month and had never witnessed any displays of attention. He said Read had told him “Michael boards here.”

Justice Young said it was “a borderline case.” But to help himself resolve the issue, he decided that Benney’s credibility was questionable on the following counts.

1. Miss Read said that she found her “step uncle” sleeping alone when she went to wake him to go and pick grapes with her during her 4-5 week stay. Justice Young said: Benney “tried to explain away this evidence by saying that he and the deceased thought that Miss Read would be offended by finding them in bed together so that the deceased used to get up at 4 am and go into his own bedroom and go back to sleep so that Miss Read would find him there. I find this explanation incredible.”
2. His Honour also said that Read: “could not explain why, if he and the deceased were to buy the property at Rothbury equally and he had $30,500.00 in his hand before the deposit of $6,500.00 was paid, and he knew the deceased had borrowed $8,000.00 on bankcard, he did not there and then pay half the deposit and why he did not pay part of the final balance in June 1985.”
3. His Honour doubted if Benney’s income could have been what he said it was. “rather drastic hints from the bench no income tax returns were put in evidence, though at the eleventh hour of his case the plaintiff tendered his 1989 income tax assessment.”  
4. Benney related that on one occasion when driving with Read he had asked him “Have you made any provision for me in your will?” Read made no comment but smiled. The plaintiff continued “If you haven’t I could challenge your will because of our relationship.” Read again made no comment but only smiled. His Honour opined: “It seems to me a very strange situation if two people have a “loving relationship” that that relationship continues unaffected at a stage which the plaintiff tells the deceased that he ought to have made a will in his favour and if he hasn’t he will challenge it… it does seem to me that the conversation does go against the plaintiff’s view that the relationship was a very close one.”

Justice Young is renowned as a judge who bounds onto the bench having read all the papers and quite frequently with a very well-formed view of the facts of the case. He is a man of many opinions. I have to say that these opinions appear to have unduly coloured his approach to this case. Looking just at the 4 points listed above which were considered by his Honour to weaken Benney’s credibility:

1. It is not incredible to me that a closeted older man and his partner would go to considerable lengths to conceal any sex or sleeping together from a family member who was not “in the know.”  I do agree that it seems unlikely, but I don’t think this is a point on which a case should hang.
2. This presupposes that this was a matter which required explanation.  If the method of co-owning the property had not yet been resolved (and bearing in mind that there could still have been reservations on Read’s behalf as to the exact terms on which the property should be co-owned) and especially bearing in mind that Benney had yet to sell his own house and presumably needed to live on his retirement moneys, I don’t view this in quite the same way as Young J does.  This is one of those areas where non-married people behave differently from married people precisely because they are not living in the same kind of juridical institution.
3. I can just imagine what those “drastic hints” were. If you’ve seen Justice Young on the bench, the line about schoolboys playing with flies might be one which comes to mind. You wonder how far this point can go since you can safely assume that the tax assessment which was tendered was in fact consistent with what Benney had said, since otherwise Young J would surely have said more.
4. This just goes to show that his Honour was totally unable to comprehend the position of a person in a closeted and in any event not legally recognized relationship.  Things like this are said all the time, especially because the issues remain unresolved.  A conversation like this is not necessarily a fight, and even if so, even loving relationships have their ups and downs.  Young J said: “Indeed, all sorts of sinister implications could be read into that conversation which I do not think I should infer because there was no cross examination in the conversation.”  You may wonder whether he has in fact refrained from inferring, given that he has used that conversation – volunteered by Benney – as indication that there was not a loving relationship.  Even married people can have conversations about each other’s wills, though of course it is unquestionable that if inadequate provision is made they will be eligible persons so that it might not be necessary to make that specific point.  Such conversations need not mean that the relationship is not loving, since even in loving relationships opinions might differ about what the various claims on each party’s testamentary bounty are. I know of at least one evidently loving couple where the wife has sent a draft of her husband’s will to her lawyer for advice, and clearly in that context, prospective FPA claims were a matter at issue. It might be a bit rude, but it is not so much different from discussions about marriage jointures and prenups which have been going on since the year dot, as Young J, as an equity lawyer, should know better than many.

But what to do about all the people who observed discreet indicia of a homosexual relationship?  Well, first, so far as they based this view on the existence of 2 double beds, Young J held that when guests stayed, Benney slept on a camp stretcher in Read’s room, so that to the extent that they based their view on the double bed situation, their opinions were unfounded.  That to me seems extraordinary, both because very little of their evidence as he summarised it was based on such a premiss and secondly because people can quite often sleep separately for all sorts of reasons even if they have sex together.

Secondly, Young J airily dismissed all of their evidence because, at least in some cases (Mr Stratford and Mrs Hawkins, Read’s elder sister, “a very zestful 76”) statements had been elicited in cross-examination that they had come to give evidence because they felt that Benney had been hard done by, and that they wanted to help him get what he fairly deserved.  You might have thought that this would support the claim and in particular the appeal to community values, but to Justice Young it simply meant that they were making all or some of what they said up.

His honour found that there was no homosexual relationship.  In terms of the criteria under the Act, he further held that :

(a) the two men were not living in the same household (so apparently they were in two separate households under the same roof);

(b) Benney was not dependent on Read (despite his observation that he was able to work less because he was living in Read’s house);

(c) and even if they were, there wouldn’t have been “factors warranting.”

Rather:

They did not present to the community a relationship which would have indicated that there was an obligation on them both or either of them to make provision for the other in the event of the death of either. Even if the average member of the community had known all the facts, there still would not be, in my view, a situation where it could be said that the deceased was obliged to make provision for the plaintiff.

You have to bear in mind that “all the facts” is all the facts as Young J found them, that is, that there was no sexual relationship and Benney was just a younger man who had never made contribution to the property in Rothbury and just lived there because it was convenient and cheap for him to do so and was making all the relationship stuff up.

In a 1996 article, Jenni Millbank (who has made gay and lesbian relationships her legal life’s work) buries the following comment [emhasis added] in a footnote about the expansion of “dependent” to encompass emotional as well as financial dependence:

“although emotional dependence has never been considered sufficient, and Young J has always been quick to find that relationships in question were not gay and that they did not contain elements of financial dependence: see Benney v Jones (1991) 23 NSWLR 559, especially Preistley JA. In McKenzie v Badderly (1991) (Unreported, NSW CA, 3 December 1991) the majority held that $20 per week income (earned through the property of the deceased) for the pensioner applicant was sufficient to make him dependent on the deceased. Nevertheless, it should be noted that on rehearing Young J held against the applicant, including costs: see McKenzie v Badderly (1994) (Unreported, NSW SC, 26 October 1994, Young J). The principle has been more generously, and less homophobically applied in NSW in other cases: see eg Gray v Public Trustee (1993) (Unreported, NSW SC, 25 November 1993, Master McLaughlin).

These are strong words in an academic article. The reference to Priestley JA’s judgment is in particular I think a reference to Priestley’s holding that Young J went too far in finding that the two men did not live in the same household. His Honour was also critical of Young J’s dismissal of evidence given by other parties which included witnesses who were not called for cross-examination and whom Young J never saw at all. On the papers (ie, reading the affidavits and the transcript), he would have thought that Benney was dependent on Read within the requirements of the statute. It was Young J’s findings as to credibility which made his factual findings proof against appeal. In addition, Priestley still felt that basically (and this I would not cavill with if we were talking about two people who were still living) Read had provided adequately for Benney in the course of the relationship, whereas Benney had not chipped in as he might have.

Apart from anything Priestley said, there is also Young J’s starting point, which was his expressed view that finding that there was a homosexual relationship was akin to finding that there had been (as in old matrimonial causes proceedings) adultery. It was not a finding to be made lightly; the court needed to be comfortably satisfied of it, especially bearing in mind that much of the evidence would be circumstantial. I agree with the circumstantial bit, but the core reason for caution in making such a finding in the traditional decisions was that adultery was wrong. In bestowing the epithet “homophobic” Millbank has also taken into account the other decision of Justice Young that she has referred to. I think it is deserved.

History does not record what happened to Benney. He was ordered to pay $50,000 costs of the trial (approximately) and also the costs of the appeal. Ms Jones got the bequest of about $190,000 less any costs which were not recovered from Benney.

Justice Young is now Chief Judge in Equity in the Supreme Court of NSW and still going strong. His hobby is collecting model buses and working out bus timetables.