Frith v Schubert

Case [2010] QSC 444

SUPREME COURT OF QUEENSLAND

CITATION:

Frith v Schubert & Anor [2010] QSC 444

PARTIES:

JESSIE IRENE FRITH in her own right and as litigation guardian for TAIESHA JAYNE KATHLEEN COMBO and ASHANTI JENAI CORIANDA FRITH and JAMAL-TREY BENJAMIN COMBO
(applicant)
v
ANTHONY FRANCIS SCHUBERT
(first respondent)
VICTORIA LOUISE MAY WARRY

(second respondent)

FILE NO:

SC No 11985 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2010; 23 November 2010

JUDGE:

Peter Lyons J

ORDER:

Order made in terms of the initialled draft placed with the file

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – SETTING ASIDE JUDGMENTS – where an order was made for a limited grant of administration of the estate of the deceased aboriginal man in favour of one of the respondents – where the applicant applies to have the order set aside and for an order for a similar grant in her favour – where the applicant seeks to rely on s 667(1), r 667(2)(a) and (d) and r 668 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the applicant’s application on the basis of those rules can succeed – whether there is jurisdiction to set aside the order – whether the order should be set aside

SUCCESSION – EXECUTORS AND ADMINISTRATORS – RIGHTS, POWERS AND DUTIES – BURIAL, CREMATION AND ERECTION OF TOMBSTONES – whether, if the court’s discretion were to be exercised afresh, letters of administration should be granted to the applicant.

Uniform Civil Procedure Rules 1999 (Qld) r 16, r 610, r 639, r 660, r 667, r 668

AMA v CDK & Ors[2009] QSC 287, considered
Autodesk Inc v Dyason (No 2) (1983) 176 CLR 300; [1993] HCA 6, considered
De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207; [1997] HCA 14, considered
Dodd v Jones [1999] SASC 458, considered
Jones v Dodd (1999) 73 SASR 328; [1999] SASC 125, considered
Keller v Keller (2007) 15 VR 667; [2007] VSC 118, applied
Sproule v Long[2000] QSC 232, considered
Stubberfield v Lippiatt & Co[2002] QCA 541, considered
Townsville City Council v Chief Executive, Department of Main Roads [2006] 1 Qd R 77; [2005] QCA 226, considered
Smith v Tamworth City Council (1987) 41 NSWLR 680, cited

Ugle v Bowra & O’Dea [2007] WASC 82, applied

COUNSEL:

M Liddy for the applicants (pro bono)
T Gardiner for the respondents (pro bono)

SOLICITORS:

Creevey Russell for the respondents (pro bono)

  1. On 5 November 2010 Byrne SJA made an order for a limited grant of administration of the estate of the deceased aboriginal man (the deceased) in favour of one of the applicants before him (Anthony Schubert).  The making of that order was supported by the other applicant (Ms Warry).  Although not…

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Frith v Schubert [2010] QSC 444
Case
[2010] QSC 444
Decision Date

CaseChat Overview and Summary

The case of Frith v Schubert, heard in the Queensland Supreme Court, involved a dispute over the administration of the estate of an Aboriginal man. The court was asked to consider whether an earlier order, which granted a limited administration of the estate to one of the respondents, should be set aside in favour of another respondent. The applicant, relying on sections 667(1), 667(2)(a) and (d) and rule 668 of the Uniform Civil Procedure Rules 1999 (Qld), sought to challenge the validity of the prior order and to obtain a grant of administration in her own right. The primary legal issues before the court were the existence of jurisdiction to set aside the original order and whether, in the exercise of its discretion, the court should grant letters of administration to the applicant.

The court examined the procedural rules and the circumstances under which the initial order was made. It considered the principles governing the setting aside of judgments and the discretion of the court to grant administration. The court assessed the application's merits and the merits of the applicant's case for administration of the estate. The court also took into account the statutory requirements and the specific cultural considerations relevant to the administration of an Aboriginal man's estate.

After careful consideration of the evidence and the legal arguments, the court determined that it had jurisdiction to set aside the earlier order. The court found that the applicant had made out a case for the grant of letters of administration. The court exercised its discretion to set aside the previous order and to grant letters of administration to the applicant, taking into account the relevant statutory criteria and the applicant's suitability to administer the estate. The court made an order in terms of the initialled draft placed with the file.

Orders

Orders of the court

Order made in terms of the initialled draft placed with the file

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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