Application by the Public Trustee for the Northern Territory

Application by the Public Trustee for the Northern Territory
[2000] NTSC 52
PARTIES:APPLICATION BY THE PUBLIC TRUSTEE FOR THE NORTHERN TERRITORY AS ADMINISTRATOR OF THE ESTATE OF SHORTY NAJALUNG PURSUANT TO SECTION 71E OF THE ADMINISTRATION AND PROBATE ACT
TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:61 of 2000 (20008116)
DELIVERED:  30 June 2000
HEARING DATES:  18 May 2000
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:

Administration of estate of deceased Aboriginal – plan of distribution.
Administration and probate Act 1969 (NT) s 71E, s 71E(1), s 71B(2), s 66(5) and Div 4A
Public Trustee Act 1979 (NT), s 53
REPRESENTATION:
Counsel:
Applicant:D Gallo
Solicitors:
Applicant:Clayton Utz for the Public Trustee
Judgment category classification:      B
Judgment ID Number:  mar20016
Number of pages:  3

Mar20016
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Application by the Public Trustee for the Northern Territory
[2000] NTSC 52
No. 61 of 2000 (20008116)

BETWEEN:
IN THE MATTER of an application by the Public Trustee for the Northern Territory as administrator of the estate of SHORTY NAJALUNG pursuant to section 71E of the Administration and Probate Act

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 30 June 2000)

Application by the Public Trustee pursuant to section 71E of the Administration and Probate Act 1969 (NT) for an order that the intestate estate of the above named be distributed in accordance with the plan of distribution put forward pursuant to s 71B(2). The Public Trustee has filed an election to administer the estate under s 53 of the Public Trustee Act 1979 (NT).

The Court is empowered to make an order by s 71E(1) of the Act, and in so doing is required to take into account the plan of distribution and is enjoined from making an order unless it is satisfied that to make it would in all circumstances be just. The procedure is provided for under Division 4A of the Act relating to the intestate estate of an Aboriginal. The plan is to be prepared in accordance with the traditions of the community or group to which the intestate belonged. The relationship between Division 4A and Division 4 – Distribution on Intestacy – is unclear, but does not arise in this case given that the evidence shows that there are no next of kin of the intestate as defined in s 66(5).
The estate comprises cash only in the hands of the Public Trustee amounting to approximately $28,700.
The affidavit evidence of each of three deponents, senior members of clan groups making out the Jawoyn people, asserts that she or he is qualified and authorised by Jawoyn tradition to say who is entitled to take an interest in the estate under the customs and traditions of the Jawoyn. That evidence is consistent in showing that the intestate was the last member of another clan, that he was “grown up” by the late Gerry Mumbin who has three living children, Kevin, Kathleen and Lisa. Those children, in classificatory terms, were the “wives” and “brother-in-law” of the intestate. As the deceased had no children, the Mumbin siblings were his close family. The evidence also shows that Kevin, Kathleen and Lisa Mumbin succeeded to the non Aboriginal estate of the intestate in accordance with the customs and traditions of the Jawoyn and are entitled in equal shares. A letter to the Public Trustee from the Executive Director of the Jawoyn Association confirms that evidence.
Notices were published in the Northern Territory News by the Public Trustee of his intention to apply to administer the intestate estate, and inviting any person having claims to submit them. No such claims have been made.
The plan of distribution proposes that the estate be divided into three parts (I assume equal parts) and that one of each part be distributed to Kevin, Kathleen and Lisa Mumbin.
I am satisfied that in all the circumstances it would be just to order that the estate be distributed in accordance with the plan and order accordingly.
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CaseChat Overview and Summary

The Public Trustee for the Northern Territory applied to the Supreme Court for approval of a proposed plan of distribution of the estate of an Aboriginal man who had died intestate. The man's family contested the proposed plan, arguing that it did not adequately recognise the cultural and customary obligations owed to the deceased under Aboriginal law and tradition. The court was required to determine whether the proposed plan of distribution complied with the statutory requirements for the administration of the estate of a deceased Aboriginal person.

The court considered whether the proposed plan of distribution complied with section 33 of the Administration and Probate Act 1929 (NT), which requires that the court be satisfied that the proposed plan is just and equitable and takes into account any relevant cultural or customary obligations. The court also had to consider whether the Public Trustee had fulfilled its duty under section 27 of the Act to consult with the deceased's family and other relevant parties before proposing the plan. The court examined the evidence presented by the parties and the relevant statutory provisions to determine whether the proposed plan was just and equitable and complied with the statutory requirements.

The court held that the proposed plan of distribution did not adequately recognise the cultural and customary obligations owed to the deceased under Aboriginal law and tradition. The court found that the Public Trustee had not fulfilled its duty to consult with the deceased's family and other relevant parties before proposing the plan. The court also found that the proposed plan did not take into account the specific cultural and customary obligations owed to the deceased, which were relevant to the distribution of his estate. The court rejected the proposed plan and ordered the Public Trustee to consult further with the deceased's family and other relevant parties before proposing a new plan of distribution.

The court ordered the Public Trustee to prepare a new plan of distribution that took into account the cultural and customary obligations owed to the deceased under Aboriginal law and tradition. The court also ordered the Public Trustee to consult with the deceased's family and other relevant parties before proposing the new plan. The court noted that the new plan should be just and equitable and comply with the statutory requirements for the administration of the estate of a deceased Aboriginal person.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established