Kirsten v Miller

This case concerned an appeal by Ernst against interlocutory orders made by a judge in an advice action. The dispute arose when Ernst, a beneficiary of an estate, sought to be heard on an application for advice and directions brought by the executor, Miller. The Full Court of the Supreme Court of South Australia was required to determine whether Ernst, as a beneficiary, had a right to be heard on such an application, and if so, the extent of that right.

The central legal issue was whether the judge erred in hearing and determining the advice action on an ex parte basis, despite Ernst's stated intention to be heard. Ernst contended that he was denied any opportunity to participate, even if his right to be heard might have been qualified or limited. The court considered the established practice in England and Australia regarding the participation of beneficiaries in advice proceedings, noting that while beneficiaries are typically served, their presence during the discussion of the merits of the main action between the trustee's counsel and the judge is often restricted to avoid disclosure of sensitive information about the trustee's case.

The court acknowledged that the advice orders were interlocutory but noted they affected substantive rights by establishing the executor's right of indemnity for costs. The principal criteria for granting leave to appeal against an interlocutory decision were whether the decision was sufficiently doubtful to warrant reconsideration and whether substantial injustice would result if the decision were wrong. The court observed that Ernst had not been able to find Australian authority directly addressing a beneficiary's right to be heard on an executor's application for advice and directions.