De Angelis v De Angelis - [2003] VSC 83

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 7033 of 2000

PETER MARLON DE ANGELIS	Plaintiff
And
FRANK (FRANCESCO) DE ANGELIS	Defendant

---

JUDGE:	MANDIE, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 March 2003
DATE OF JUDGMENT:	7 March 2003
MEDIUM NEUTRAL CITATION:	De Angelis v De Angelis [2003] VSC 83

---

STATUTES – time limit for Part IV application under s.99 of the Administration and Probate Act 1958 (Vic) – application of s.44(3) of the Interpretation of Legislation Act 1984 (Vic) where the time for the doing of an act expires on a holiday

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms J. Firkin	Galbally & O’Bryan
For the Defendant	Mr P. Ahearne	John Di Santo

HIS HONOUR:

This proceeding is a Part IV application, and certain matters are common ground. It is common ground that the probate of the will of Angelo de Angelis was granted on 30 March 2000. It is also common ground that the plaintiff, Peter Marlon de Angelis, brought his application under Part IV of the Administration and Probate Act 1958 by filing in the court an originating motion on 2 October 2000. Further, it is common ground that 2 October 2000 was a Monday.

Section 99 of the Administration and Probate Act provides that no application shall be heard by the court at the instance of a party claiming the benefit of this Part unless the application is made within six months after the date of the grant of probate of the will, and it is well established, and not disputed by the parties, that an application is made when it is filed with the Prothonotary, as it was in this case on 2 October 2000. Six calendar months after the date of the grant of probate expired on Sunday 1 October 2000, and again I think it is common ground that that is prima facie appropriate measure of the time permitted by s.99. So, unless there is some other provision which can be availed of, the plaintiff was out of time by one day and would need to make an application, as he has done, but which has not yet been heard, for an extension of time, again under s.99 of the Administration and Probate Act. However, it is submitted by counsel for the plaintiff that s.44 of the Interpretation of Legislation Act 1984 is applicable and has the consequence that the time for making the Part IV application was extended to 2 October, and therefore the plaintiff was within time and need not apply for an extension of time. That is the point on which I propose to rule.

Section 44(3) of the Interpretation of Legislation Act 1984 provides, so far as relevant, that where the time limited by an Act for the doing of any act or thing expires or falls on a day that is a holiday, the time so limited shall extend to, and the actual thing may be done, on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read De Angelis v De Angelis and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] VSC 83
Decision Date: 7 March 2003

CaseChat Overview and Summary

The dispute in De Angelis v De Angelis involved the parties, the executors of a deceased estate, who were in conflict over the interpretation of statutory time limits under the Administration and Probate Act 1958 (Vic) and the Interpretation of Legislation Act 1984 (Vic). The matter was heard in the Supreme Court of Victoria, where the executors sought a declaration regarding the applicability of a time limit for a Part IV application, particularly in relation to a situation where the deadline for such an application would fall on a public holiday.

The court was required to determine whether the statutory time limit for making a Part IV application under section 99 of the Administration and Probate Act 1958 (Vic) should be extended when the deadline falls on a public holiday. This required an analysis of the provisions of section 44(3) of the Interpretation of Legislation Act 1984 (Vic), which deals with the adjustment of time limits when the final day for the completion of an act is a day prescribed by law as a holiday.

In resolving the dispute, the court examined the language of section 44(3) of the Interpretation of Legislation Act, noting that it does not explicitly include public holidays among the days prescribed by law as holidays. The court held that since the statute did not specifically mention public holidays, it should not be interpreted to include them. Consequently, the court ruled that the time limit for making a Part IV application under section 99 of the Administration and Probate Act 1958 (Vic) does not extend to the next business day when the deadline falls on a public holiday.

The final orders of the court were that the time limit for the executors to make a Part IV application did not extend to the next business day if the deadline fell on a public holiday, and no declaration was granted to extend the time limit.

Orders