In the Estate of GIOVANNI ANTONIO TAMBURIN - [2014] SASC 58

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Civil)
In the Estate of GIOVANNI ANTONIO TAMBURIN
[2014] SASC 58
Judgment of The Honourable Justice Gray
5 May 2014
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - FOREIGN GRANTS - RESEAL - JURISDICTION AND GENERALLY
Appeal from a decision of the Registrar of Probates to refuse to accept for examination an application for the re-sealing of a grant of administration with the will annexed made by the Supreme Court of Victoria. The description of the deceased in the Victorian grant was not in a form that would be made by this Court in accordance with the rules relating to alias grants.
Whether the applicant is required to obtain a re-sealing of the Victorian grant in order to deal with assets of the deceased’s estate located in South Australia. Whether the Registrar erred in refusing to accept for examination the application for re-sealing.
Held (dismissing the appeal):
1. The applicant is required to apply for re-sealing or for an original grant in South Australia in order to deal with the real property of the estate located in South Australia. Section 118 of the Australian Constitution does not operate such that a grant in one state will have full force and effect in the other states in the absence of the re-sealing of that grant.
2. The Registrar did not err in the exercise of his discretion by refusing to accept for examination the application for re-sealing. The manner in which a testator is described in a grant of probate is a matter of some significance and is more than a mere matter of form.
3. It is appropriate to direct that a grant of probate be made.
Probate Rules 2004 (SA) r 12, r 47 and r 76; Administration and Probate Act 1919 (SA) s 17; Australian Constitution s 118; Evidence Act 1995 (Cth) s 185, referred to.
In the Estate of Rogowski [2007] SASC 161; Blackwood v The Queen (1882) 8 App Cas 82; Horsfall v The Commissioner of Taxes for Victoria (1918) 24 CLR 422; Re Butler [1969] Qld LR 106; Public Trustee of New Zealand v Smith (1924) 42 WN (NSW) 30; In the Estate of Horvath (deceased) (2007) 249 LSJS 91; IW v The City of Perth (1997) 191 CLR 1; Breavington v Godleman (1988) 169 CLR 41, considered.

In the Estate of GIOVANNI ANTONIO TAMBURIN
[2014] SASC 58
Testamentary Causes Jurisdiction
GRAY J.

This is an appeal against a decision of the Registrar of Probates to refuse to accept for examination an application for the re-sealing of a grant of letters of administration with the will annexed made by the Supreme Court of Victoria.
Background
Giovanni Antonio Tamburin, the deceased, died on 29 January 2010 aged 43 years. At the time of his death, the deceased was domiciled in Victoria. The deceased left an informal will dated 25 January 2010.
On 9 October 2012, Susan Gaye Vanderlinden, the domestic partner of the deceased, obtained a grant of letters of administration with the will annexed of the deceased’s estate from the Supreme Court of Victoria. The grant was made in the names of “GIOVANNI ANTONIO TAMBURIN (in the Will called JOHN TAMBURIN) also known as JOHN ANTHONY TAMBURIN”. On 26 March 2013, an exemplification being a sealed copy of the letters of administration was issued by the Registrar of Probates of the Supreme Court of Victoria under the seal of that Court.
By application dated 24 May 2013, Ms Vanderlinden sought the re-sealing of the grant of letters of administration by this Court. The applicant submits that it is necessary to have the grant re-sealed in order to deal with South Australian real property owned by the deceased’s estate. The Probate Registry issued a memorandum and advised the applicant that the grant of letters of administration by the Supreme Court of Victoria was not in a form that would be made by this Court and so could not be re-sealed. Specifically, it was said that this Court does not make grants in the style “in the will called” or “also known as”. Instead, rules 12.02 and 12.03 of the Probate Rules 2004 (SA) provide that alias grants are to be made in the style “otherwise”. The memorandum suggested that the applicant apply for an original grant of probate in South Australia.
The Appeal
An appeal to this Court lies from a decision of the Registrar of Probates in accordance with rule 76.01 of the Probate Rules, which relevantly provides:
An appeal shall lie to a Judge in Chambers from any judgment, determination, order, direction or decision given or made by the Registrar or Deputy Registrar and shall be instituted in the manner prescribed by Supreme Court Rule 97.03(1).
…
The applicant’s notice of appeal purports to appeal against the decision of the Registrar of Probates to refuse to re-seal the grant of letters of administration made by the Supreme Court of Victoria. However, it appears that the relevant decision was actually the decision of the Registrar not to accept the application for examination. I do not consider that anything turns on this.
Two primary questions arise on the appeal. First, whether the applicant is required to obtain a re-sealing of the Victorian grant in order to deal with the assets of the deceased’s estate located in South Australia. If the first question is answered in the affirmative, the second question is whether the Registrar erred in refusing to accept for examination the application for re-sealing.
The Need for Re-Sealing
Section 17 of the Administration and Probate Act 1919 (SA) addresses the re-sealing of foreign and interstate grants of probate and provides:
When any probate or administration granted by any Court of competent jurisdiction in any of the Australasian States or in the United Kingdom, or any probate or administration granted by a foreign court, is produced to and a copy thereof deposited with the Registrar, such probate or administration may be sealed with the seal of the Supreme Court, and thereupon shall have the like force and effect and the same operation in this State, and every executor and administrator thereunder shall, subject to subsection (4) of section 65 of this Act, have the same rights and powers, perform the same duties, and be subject to the same liabilities, as if such probate or administration had been originally granted by the Supreme Court.
The procedure relating to the re-sealing of grants is provided by rule 50 of the Probate Rules.
In In the Estate of Rogowski, I made the following observations regarding the Court’s jurisdiction to make a grant or re-seal a grant of probate or administration:[1]
Section 18 of the Supreme Court Act 1935 (SA) vests in the Court all the powers, jurisdiction and authority in testamentary causes or matters which were formally vested in the Court of Probate in England under the Court of Probate Act 1857. Sections 5 and 21 of the Administration and Probate Act preserve the testamentary causes jurisdiction and practice successively vested in this Court by the Testamentary Causes Act 1867.[2] The jurisdiction to make a grant of probate or administration in South Australia is limited to cases where the deceased left real or personal property within the jurisdiction.[3]
The property requirement appears steadfast even in the case of an ad litem grant.[4] Any property is sufficient and the fact that the will does not dispose of it is not a ground for refusing the grant.[5] These requirements apply to the re-sealing of a grant. When a grant is re-sealed it has the same force, effect and operation as if it had been originally granted by the re-sealing court.
Re-sealing is necessary among Australian States and the Australian Capital Territory. They are treated as separate countries in private international law and “are to be so regarded in relation to one another”.[6] Furthermore section 118 of the Constitution dealing with the giving of full faith and credit throughout Australia to the laws, public Acts, records, and judicial proceedings of every State does not allow a grant of probate or administration made in one jurisdiction to be effective in another.[7]
Under principles of private international law relating to the succession of property, moveables are governed by the law of the deceased’s last domicile - lex domicilii - and immovables by the law of the place where they are situated - lex situs. In Lewis v Balshaw,[8] the High Court held that neither convenience nor comity overcame these principles.
In South Australia any probate or administration granted by a court of competent jurisdiction in any of the Australian States or in the United Kingdom or “a probate or administration granted by a foreign court” may be re-sealed.[9] “Administration” includes letters of administration with the will annexed and letters of administration granted for general, special or limited purposes.[10]
Special, limited or temporary grants may not be re-sealed without an order of the Registrar.[11] Notice of the application to re-seal need not be advertised unless the Registrar requires it.[12]
[1]    In the Estate of Rogowski [2007] SASC 161, [12]-[17].
[2]    Testamentary Causes Act 1867 section 6 and 14. The history of the jurisdiction is noted by Napier J in In re Kuhl; Kuhl & Anor v Leibcheschel [1933] SASR 394.
[3]    Administration and Probate Act 1919 (SA) section 5.
[4]    Re Aylmore [1971] VR 375.
[5]    In re Carlton deceased [1924] VLR 237.
[6]    Pedersen v Young (1964) 110 CLR 162 per Windeyer J at 170.
[7]    Permanent Trustee Co. v Finlayson (1968) 122 CLR 338.
[8]    Lewis v Balshaw (1935) 54 CLR 188.
[9]    Administration and Probate Act 1919 (SA) section 17.
[10] Administration and Probate Act 1919 (SA) section 4.
[11] The Probate Rules 2004 (SA), rule 50.08.
[12] The Probate Rules 2004 (SA), rule 50.03 and see Form 65.
On the appeal, a practitioner from the Crown Solicitor’s Office appeared as amicus curiae to make written and oral submissions to assist the Court with the question of whether or not the re-sealing of the Victorian grant is necessary to enable the applicant to deal with property of the estate located in South Australia. In particular, I invited counsel’s attention to the effect, if any, section 118 of the Australian Constitution may have such that the Victorian order ought to permit the executor to deal with property in South Australia without a re-sealing of the grant.
Section 118 of the Australian Constitution provides:
Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.
In his written submissions, counsel outlined the historical development of the law relating to grants of probate. It was pointed out that at common law, a grant of probate or administration only had application to those assets located within the jurisdiction of the court. Accordingly, representatives of deceased persons would often need to obtain several grants to deal with property within the jurisdiction of different courts. In 1858, reforms were passed to provide for a process whereby a grant in one part of the United Kingdom could be re-sealed by a court in another part, thereby avoiding the need to again apply for an original grant. Significantly, the reforms did not alter the nature of original grants, but instead provided a scheme whereby those grants could be re-sealed to gain broader territorial application.
In Blackwood, a colonial case from Victoria, the Privy Council explained the limitations of an original grant of probate or administration:[13]
The grant of probate does not of its own force carry the power of dealing with goods beyond the jurisdiction of the Court which grants it, though that may be the Court of the testator's domicile. At most it gives to the executor a generally recognised claim to be-appointed by the foreign country or jurisdiction.
The re-sealing scheme accepts and provides a solution to those limitations.
[13] Blackwood v The Queen (1882) 8 App Cas 82, 92; see also Horsfall v The Commissioner of Taxes for Victoria (1918) 24 CLR 422.
In Re Butler, an argument was made that a grant of administration should be made in Queensland to facilitate an administrator acting as administrator ad litem in relation to litigation occurring in New South Wales.[14] Matthews J explained that a grant of administration in Queensland would not assist because “an administrator appointed by this Court has no legal existence elsewhere and as a result could neither sue or be sued in another State”.[15] Addressing section 118 of the Australian Constitution, Matthews J explained:[16]
… No doubt, if the occasion arose in a relevant sense, a court in New South Wales would give full faith and credit to the appointment of an administrator ad litem in Queensland for the purposes of a suit in this State but, however widely one construes the section, I do not think it could be so applied as to give in a State, right of action against one who did not legally exist in that State.
[14] Re Butler [1969] Qld LR 106.
[15] Re Butler [1969] Qld LR 106, 107.
[16] Re Butler [1969] Qld LR 106, 107.
When the territorial nature of a grant of probate is properly understood, it can be seen that section 118 of the Australian Constitution does not operate such that a grant in one state will have full force and effect in the other states in the absence of the re-sealing of that grant. Giving an order full faith and credit within the meaning of section 118 cannot make it possess a character it neither had nor was intended to have. As a general rule, a grant of probate or administration in Victoria confers no authority to take possession of or deal with assets located within the jurisdiction of this Court. Treating the order of the Supreme Court of Victoria to grant administration as conferring a power to deal with real property in South Australia would not involve giving the order full faith and credit. Instead, this would change the very nature of the original order.
The applicant is required to apply for re-sealing or for an original grant in South Australia in order to deal with the real property of the estate located in South Australia.
The Decision of the Registrar
The second question for determination is whether the Registrar erred in refusing to accept for examination the application for re-sealing on the basis that the Victorian grant was not made in a form that would have been made by this Court.
Rule 12.02 of the Probate Rules provides:
In the case of a variation between the name of the testator in the heading of the will and the name signed, if the former is the more correct of the two the testator must be described by the name signed, the word "otherwise", followed by the name given in the will being added.
Rule 12.03 of the Probate Rules similarly provides:
If the testator's name is wrongly spelt in the will and the will is signed by the testator’s initials or by a mark or by an abbreviated Christian name the testator must be described by his or her correct name, the word "otherwise", followed by the name written in the will being added.
Rule 47 of the Probate Rules provides:
Except in the cases provided in Rules 12.02 and 12.03, if a grant is required to issue in more than one name, the grounds for requiring the grant to so issue (for example, that the deceased held assets in each alternate name) and the identity of the deceased under the respective names must be established to the Registrar's satisfaction.
As earlier mentioned, the grant of letters of administration made by the Supreme Court of Victoria did not comply with the style mandated by rules 12.02 and 12.03 of the Probate Rules and was instead made in the names of “GIOVANNI ANTONIO TAMBURIN (in the Will called JOHN TAMBURIN) also known as JOHN ANTHONY TAMBURIN”. In his memorandum referring this appeal to me, the Registrar indicated that it is the practice of this Court not to re-seal a grant that it would not have made itself.
On the appeal, the applicant accepted that the jurisdiction conferred on the Court by section 17 of the Administration and Probate Act gives the Court an element of discretion as to whether to re-seal a grant. So much is clear from the use of the word “may” in that section. However, the applicant contended that where a person has standing to seek a re-seal of a foreign grant and there is no substantive reason why the re-sealing court would not recognise the validity of the will or intestacy the subject of the foreign grant, the circumstances where the court would exercise the discretion not to re-seal are limited. Attention was drawn to the decision of the New South Wales Supreme Court in Public Trustee of New Zealand v Smith, where Harvey J made the following observation regarding the underlying object or purpose of the re-sealing jurisdiction:[17]
…the real object of the section is to relieve applicants here from the proof of relative facts already proved in another jurisdiction and to act on such facts in so far as they will justify a grant here.
[17] Public Trustee of New Zealand v Smith (1924) 42 WN (NSW) 30, 31.
Similarly, in In the Estate of Horvath, Debelle J identified the purposes of section 17 of the Administration and Probate Act as follows:[18]
Given that the purposes of s 17 include, as a matter of comity between jurisdictions, that the grant of probate or administration is to be resealed by the Registrar of Probates in a timely manner without undue expense to the estate, …
Debelle J emphasised the width of the jurisdiction intended to be conferred by section 17:[19]
Section 17 is expressed in wide terms. It operates “when any probate or administration granted by any court of competent jurisdiction” is produced to and a copy deposited with the Registrar. The use of the word “any” in the expression “any probate or administration” signifies that s 17 is expressed to operate as widely as possible. The word “any” is a word which ordinarily excludes limitation or qualification and should be given as wide a construction as possible: Victorian Chamber of Manufactures v The Commonwealth (1943) 67 CLR 335 at 346 and at 340, 344. Depending on its context, the word “any” has such a wide import that it is capable of meaning “all”: Isle of Wight Railway Co v Tahourdin (1883) 25 Ch D 320 at 332. It is, therefore, intended to apply to any kind of probate or administration in whatever form granted by a court of competent jurisdiction.
[18] In the Estate of Horvath (2007) 249 LSJS 91, [12].
[19] In the Estate of Horvath (2007) 249 LSJS 91, [10].
The applicant contended that the Court should not interpret section 17 in a manner which would impair the capacity of the section to achieve the purpose identified in the authorities extracted above. It was suggested that section 17 is a beneficial or remedial provision and, as such, should be accorded a liberal interpretation rather than an interpretation which is literal or technical.[20] The applicant submitted that the manner of description of the deceased in the Victorian grant was a mere matter of form rather than substance. It was submitted that the approach of the Registrar in refusing to accept for examination the Victorian grant only on the basis that it is not in a form that this Court would make a grant was inconsistent with the underlying purposes of the re-sealing jurisdiction.
[20] IW v The City of Perth (1997) 191 CLR 1, 12.
The applicant further contended that to regard as objectionable the form of the Victorian grant for the purpose of determining whether to re-seal the grant in South Australia would be a breach of section 185 of the Evidence Act 1995 (Cth). Section 185 provides:
All public acts, records and judicial proceedings of a State or Territory that are proved or authenticated in accordance with this Act are to be given in every court, and in every public office in Australia, such faith and credit as they have by law or usage in the courts and public offices of that State or Territory.

The meaning of “full faith and credit” has been explained by Deane J in Breavington v Godleman:[21]
To give full faith and credit to something does not, as a matter of ordinary language, mean merely to acknowledge the fact that it exists. Thus, to give full faith and credit to a person's word does not mean merely to accept the fact that the person says something. It means to accept and act upon the content of what he says. To give full faith and credit to a judgment means, as a matter of ordinary language, not only to recognize its existence but, while it stands, to accept and abide by its contents …
[21] Breavington v Godleman (1988) 169 CLR 41, 129.
The applicant submitted that section 185 of the Evidence Act requires the Registrar to give faith and credit to the exemplification of the grant made by the Supreme Court of Victoria, at the very least in the limited sense of accepting and abiding by the form of order that the Victorian Court has chosen to make as a matter of that Court’s own practice and procedure. It was further contended that the need for judicial comity within Australia suggested that this Court should not exercise its discretion to re-seal in a manner that would, in effect, impugn or call into question within South Australia the forms of practice and procedure which other Australian courts adopt in making grants of probate or administration. It was suggested that to do so would be inconsistent with modern notions of the conflict of laws under which each legal system should give effect to rules of other systems to the extent that it is proper to do so.
I consider that there is some merit in the applicant’s submission regarding the need to exercise the power to re-seal in a flexible manner which accords with the beneficial purpose of section 17 of the Administration and Probate Act. However, I am not satisfied that the Registrar has erred in the exercise of his discretion by refusing to accept for examination the application for re-sealing. The manner in which a testator is described in a grant of probate is a matter of some significance and is more than a mere matter of form.
Where the differing styles used to make an alias grant preclude the re-sealing in this Court of a grant of probate made by an interstate court, it remains open to the executor to apply for an original grant of probate in this Court. The process for doing so is not particularly burdensome. It was within the discretion of the Registrar to conclude that the importance of maintaining uniformity in the manner in which this Court will make an alias grant justified a direction that the applicant apply for an original grant.
The Application
Having concluded that the Registrar did not err in refusing to accept for examination the application for re-sealing, the Court is faced with the question of how best to deal with the application.
Prior to the hearing of the appeal, I requested that the Registrar undertake an examination of the application for re-sealing in order to ascertain whether there were any other deficiencies in the application. The Registrar indicated that the documentation provided in support of the application would provide a sufficient basis for re-sealing of the Victorian grant if it were not for the style in which the Victorian grant was issued.
An affidavit as to alias sworn by the applicant on 21 February 2014 was subsequently filed. In that affidavit, the applicant deposes that the birth of the deceased was registered in the name of Giovanni Antonio Tamburin. The applicant provides further detail as to assets held by the deceased in the name of John Anthony Tamburin. Documents relating to those assets are annexed as exhibits to the affidavit. As earlier mentioned, the deceased is described in the will as John Tamburin.
On the basis of this further affidavit evidence, I am satisfied that it is appropriate to direct that a grant of probate be made.