LA RUSSA -v- CARR [2014] WASC 497

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 497
Case No:	PRO:4841/2014	Heard:	21 NOVEMBER & 18 DECEMBER 2014
Coram:	EM HEENAN J	Delivered:	18/12/14
No of pages:	12	Judgment Part:	1 of 1
Result:	Asserted appeal incompetent Application dismissed
Category:	A
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Parties:	TONY LA RUSSA ANNA CARR
Catchwords:	Probate Non-Contentious jurisdiction Appeal Grant of letters of administration in common form Asserted appeal by brother of grantee Appellant not an applicant for any grant of administration Non-Contentious Probate Rules r 5 Nature of appeal from Registrar Competency of appeal Standing of party to appeal Appeal incompetent Alternative remedy by way of application for revocation of grant Difference between non-contentious jurisdiction and contentious jurisdiction
Legislation:	Administration Act 1903 (WA), s 8, s 63 Non-Contentious Probate Rules 1967 (WA), r 4(1), r 5, r 35 Rules of the Supreme Court (WA), O 73 Supreme Court Act 1935 (WA)
Case References:	Davis v Davis [2014] WASC 395 Re Estate of Dudley Herbert Crossland (dec) [2001] WASC 21 Re Estate of John William Henry Nicholls (dec) [2003] WASC 85 Reyburn & Anor [2002] WASCA 171 Wheatley v Edgar [2003] WASC 118

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : LA RUSSA -v- CARR [2014] WASC 497 CORAM : EM HEENAN J HEARD : 21 NOVEMBER & 18 DECEMBER 2014 DELIVERED : 18 DECEMBER 2014 FILE NO/S : PRO 4841 of 2014 MATTER : IN THE MATTER of the estate of the late Giuseppe La Russa (Dec)

AND

IN THE MATTER of a decision of the Registrar to grant Letters of Administration to Anna Carr

BETWEEN : TONY LA RUSSA

Appellant

AND

ANNA CARR

Respondent

Catchwords:

Probate - Non-Contentious jurisdiction - Appeal - Grant of letters of administration in common form - Asserted appeal by brother of grantee - Appellant not an applicant for any grant of administration - Non-Contentious Probate Rules r 5 - Nature of appeal from Registrar - Competency of appeal - Standing of party to appeal - Appeal incompetent - Alternative remedy by way of application for revocation of grant - Difference between non-contentious jurisdiction and contentious jurisdiction

Legislation:

Administration Act 1903 (WA), s 8, s 63

Non-Contentious Probate Rules 1967 (WA), r 4(1), r 5, r 35
Rules of the Supreme Court (WA), O 73
Supreme Court Act 1935 (WA)

Result:

Asserted appeal incompetent

Application dismissed

Category: A

Representation:

Counsel:

Appellant : Mr T Alexander

Respondent : Mr B Hu

Solicitors:

Appellant : Dunns Corporate Counsel

Respondent : Friedman Lurie Singh & D'Angelo

Case(s) referred to in judgment(s):

Davis v Davis [2014] WASC 395
Re Estate of Dudley Herbert Crossland (dec) [2001] WASC 21
Re Estate of John William Henry Nicholls (dec) [2003] WASC 85
Reyburn & Anor [2002] WASCA 171
Wheatley v Edgar [2003] WASC 118

1 EM HEENAN J: By a notice of appeal, defective in form and filed late, dated 6 November 2014, Tony La Russa asserts a right to appeal from…

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.

Continue reading La Russa v Carr

Details

AGLC: La Russa v Carr [2014] WASC 497
Case: [2014] WASC 497
Decision Date: 18 DECEMBER 2014

CaseChat Overview and Summary

The case of La Russa v Carr involved a dispute over the grant of letters of administration in common form by the Registrar under the Non-Contentious Probate Rules. The appellant, a brother of the grantee, sought to appeal the Registrar's decision. The court was tasked with determining the competency of the appeal and the standing of the appellant to challenge the grant of administration.

The legal issues that arose included whether the appeal was competent, given that the appellant was not an applicant for any grant of administration, and whether the appellant had standing to appeal. The court examined the rules governing the non-contentious jurisdiction and the distinction between non-contentious and contentious jurisdiction. It also considered whether the appellant could have pursued an alternative remedy, such as an application for revocation of the grant.

The court held that the appeal was incompetent because the appellant was not a party to the original application for letters of administration. It was noted that the Non-Contentious Probate Rules, specifically rule 5, do not allow for an appeal from the Registrar by a non-party. Furthermore, the court found that the appellant's alternative remedy would have been to apply for revocation of the grant, not to appeal the decision. The distinction between non-contentious and contentious jurisdiction was pivotal, as the appeal was considered outside the scope of permissible actions under the non-contentious jurisdiction.

Consequently, the court dismissed the appeal as incompetent. The appellant was advised that an application for revocation of the grant would have been the appropriate course of action if dissatisfied with the Registrar's decision.

Orders

Orders of the court

Asserted appeal incompetent

Application dismissed

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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