In the Estate of Grant Edward Flitton

[2024] ACTSC 410

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: 

In the Estate of Grant Edward Flitton

Citation: 

[2024] ACTSC 410

Hearing Date: 

18 December 2024

Decision Date: 

18 December 2024

Before: 

Mossop J

Decision: 

(1)

The applicant is directed to file no later than 31 January 2025

any further evidence, any submissions, or any opinion of counsel
in relation to the application.

Catchwords: 

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Applicant seeks opinion, advice or direction of the court – deceased left no will – amount remaining in estate not insubstantial – sole beneficiary identified – whether justified in distributing estate – no opinion of counsel or written submissions – applicant directed to file any further evidence, any submissions,

or any opinion of counsel

Legislation Cited: 

Administration and Probate Act 1929 (ACT), ss 44, 97A
Trustee Act 1925 (ACT), s 63

Cases Cited: 

In the Estate of Hansie Hart [2019] ACTSC 317
In the Estate of Stanley George Mizon (deceased) [2021]
ACTSC 240

Parties: 

Public Trustee and Guardian (Applicant)

Representation: 

Counsel

T Dowling (Applicant)

Solicitors

Dobinson Davey Clifford Simpson (Applicant)

File Number: 

PRO 160 of 2019

MOSSOP J: 

1․ 

Grant Edward Flitton died between 3 and 4 March 2018. He did not leave a will. Letters

of administration of his estate were granted to the Public Trustee and Guardian on

7 March 2019.

2․ 

The Public Trustee and Guardian now seeks an opinion, advice or direction of the court

as to whether it would be justified in distributing the estate to the sole beneficiary it has

identified under the rules for the distribution of estates on intestacy set out in the

Administration and Probate Act 1929 (ACT). The amount remaining in the estate is not

insubstantial.

3․ 

In In the Estate of Stanley George Mizon (deceased) [2021] ACTSC 240, McWilliam AJ

explained how this sort of an application should proceed. Her Honour said (at [31]-[34]):

31.      Counsel who appeared on the application fairly drew the Court’s attention to the fact

that an application for judicial advice is usually accompanied by advice from counsel. In Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844; 10 ASTLR 251, Lindsay J explained the rationale behind the requirement at [48]-[49] as follows:

[48] The practice of the Court over many years (as a matter of practice, not compelled by legislative edict) has been to look for, and in an appropriate case rely upon, a memorandum of opinion of counsel, proffered by an applicant for s 63 relief, directed to the substance of questions arising for consideration on the application: see, for example, Application of Gnitekram Marketing Pty Limited [2010] NSWSC 1328 at [17].

[49] The absence of a well-considered memorandum of opinion may compel the Court to explore possibilities, of fact and law, that might not otherwise need exploration. A well-considered memorandum should anticipate lines of inquiry that a judge might be bound to identify and, one way or another, address them so as to focus attention on real problems in need of a solution.

32.      By way of further assistance, in Application of New South Wales Trustee and Guardian

[2014] NSWSC 423; 12 ASTLR 513, Kunc J stated at [3] (emphasis added):

The trustee ...with the assistance of such advice as it may think appropriate, must first decide what it is going to do in a given situation and then, if it wishes, seek judicial advice as to whether it is justified in acting in accordance with that decision. In almost all circumstances any application for judicial advice

should be accompanied by counsel's opinion fully dealing with all the facts known to the trustee, all of the relevant legal issues and expressing a reasoned opinion in support of the particular decision which the trustee

has made. It is inappropriate and arguably in dereliction of the trustee's duties to make an application for judicial advice where the trustee's consideration of the issue (whether or not reflected in counsel's opinion), has gone no further than identifying the problem, observing that it is difficult and then asking the Court what the trustee should do.

33.      His Honour went on to further address the requirement for an opinion of a suitably qualified legal practitioner and what should be included in such an opinion, stating at [27] that the opinion will be a significant matter taken into account by the Court in determining whether or not to give the advice sought. Kunc J went on at [30] to clarify (emphasis added):

Insofar as the contents of counsel's opinion are concerned, those will be determined by the nature of the problem and the facts which give rise to it. The only general comment that can be made is that all relevant facts should be identified and considered, along with the application of the relevant legal principles and authorities to those facts. A reasoned conclusion as to the

course to be followed by the trustee must be expressed.

34.      In the present case, there was no formal memorandum of opinion. However, counsel provided detailed submissions and supplementary submissions, and appeared on the application to further assist the Court orally. During the hearing, counsel confirmed that the submissions contained the substance of the advice that would have been prepared for the Court in accordance with the usual practice. It was considered an unjustifiable expense to separately prepare an opinion when the substance of that opinion was addressed in the submissions.

4․	In the present case, the matter was referred to me to be dealt with on the papers without
any opinion of counsel or any written submission. The solicitors for the applicant have
responded to earlier issues communicated to them by my associate by email on
30 October 2024. Having examined the matter, there are at least two factual issues of
significance which remain outstanding. Those factual issues go to whether or not the
deceased had a partner or children that survived him. In both cases, the evidence
discloses some searches having been made, as well as the statements made on the
death certificate.
5․	In relation to whether or not the deceased had a partner, it appears that the Public
Trustee and Guardian has proceeded on the basis that the factual circumstances
surrounding the deceased’s living arrangements are not such as to indicate that he is
survived by a partner for the purposes of the Administration and Probate Act. However,
the basis for that understanding has not been disclosed to the court. There is no evidence
of whether or not he was living with someone at the time of his death or had, at any time
prior to his death, been in a relationship which might fall within the definition of “partner”
in s 44 of the Administration and Probate Act. In those circumstances, the enquiries
made of government records may be insufficient to establish the fact on the balance of
probabilities, having regard to the significance of the question.
6․	In relation to whether or not the deceased had any children that survived him, once again
there are documentary searches which have been undertaken. However, there is no
evidence as to any relationship history of the deceased which might affect the
probabilities of him having fathered a child. There is no evidence of where he lived at different points in his life that would indicate that the searches of the Australian Capital
Territory and New South Wales registers of births that have been undertaken, as distinct
from such registers elsewhere in Australia or the world, would be likely to disclose the
deceased’s parentage of any child.
7․	Both of those issues are likely to have been identified had counsel’s opinion been
obtained. While it would be possible to give advice based upon the limited material that
is presently available, having regard to the evidentiary nature of the issues, it is
appropriate that they be drawn to the attention of the applicant so that they may either
be addressed by further evidence, or submissions may be made explaining why they are
not an impediment to giving the advice or direction sought.
8․	There are other issues in relation to which the court should have, at the very least, the
benefit of some submissions.

(a) Which statutory power should be used? The application is said to be for advice

pursuant to s 97A of the Administration and Probate Act or, alternatively, s 63

of the Trustee Act 1925 (ACT). There are no submissions as to which power

ought to be relied upon. The authorities of the court sometimes rely on one

power and sometimes on another.

(b) Is this a “Benjamin order”? The nature of a Benjamin order was explained in

Mizon at [18]-[22]. The order for distribution sought in the present case was

identified as being without prejudice to the right of any persons with a better

entitlement to the person to whom distribution was sought to be made. Following

an enquiry from the court in the email on 30 October 2024, this was clarified by

the solicitor for the applicant as being intended only relate to the circumstances

prior to distribution of the estate. Notwithstanding that response, the formulation

of the order appears to pick up the formulation of the orders in In the Estate of

Hansie Hart [2019] ACTSC 317, which operated as a Benjamin order. While it

appears most likely, notwithstanding the earlier response, that what is intended

is a Benjamin order, it is essential that the court understand the basis upon

which the application is put.

9․	In order that the applicant be able to finalise the factual foundation upon which it seeks
to have the orders made and has the opportunity to file any written submissions or
opinion of counsel that it considers appropriate, I will make the following direction:

(1)	The applicant is directed to file no later than 31 January 2025 any further
evidence, any submissions, or any opinion of counsel in relation to the
application.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 19 December 2024