Mainstone, B.J. v The Public Trustee - [1992] FCA 1003

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JUDGMENT No. ........ ........ .. ..... , ...., !
C A T C H W O R D S

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CROSS VESTING - action in relation to Will - Instituted in Federal Court - claim for L
,
declaration of invalidity - alleged lack of testamentary capacity - third party discovery I

sought relating to medical records - not available in Supreme Court - thrd party discovery refused - motion to transfer to Supreme Court - rationale for cross vesting

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I
legislation - traditional jurisdiction of Supreme Court - administrative supports in
place in relation to grants of probate - transfer order made.
Jurisdiction of Courts (Cross-vestinel Act 1987 s.4
Jurisdiction of Courts (Cross-vestine) Act 1987 (Cwth) s.5

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Federal Court Rules 0. 15A r.8 , ,

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Richardson Pacific Limited v. Fleldlng (1990) 26 FCR 188 !..

La Rosa Ex uarte Noruard. Rodoat Nomlnees Ptv Limlted and G~luin Park Ptv Ltd 8 .
(unrep. Fed. Ct. 26.10.92 French J.) 8 .
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BENJAMIN JOHN MAINSTONE V. THE PUBLIC TRUSTEE, JUNE HONORA 8 _
L i
AYRES and DESMOND THOMAS AYRES
No. WAG 172 of 3992
FRENCH J.
PERTH

30 OCTOBER 1992

IN THE FEDERAL COURT )

OF AUSTRALIA 1
WESTERN AUSTRALIA )
DISTRICT REGISTRY 1
GENERAL DMSION

1 No. WAG 172 of 1992

B E T W E E N : BENJAMIN JOHN MAINSTONE

Applicant
and
THE PUBLIC TRUSTEE

F~rst Respondent

JUNE HONORA AYRES and
DESMOND THOMAS AYRES
Second Respondent
MINUTE OF ORDER

JUDGE MAKING ORDER: FRENCH J.
DATE OF ORDER: 30 October 1992
WHERE MADE: PERTH

THE COURT ORDERS THAT:

On the applicant's motion filed 7 October 1992:

The motion is dismissed.

2. The applicant pay the respondent's costs of the motion.

On the first respondent's motion filed 28 October 1992:

The proceedings be transferred to the Supreme Court of Western Australia pursuant to s.5(4) of the Jurisdiction of Courts (Cross-Vesting) Act (Cwth) 1987.

2. The applicant pay the respondent's costs of the motion.

NOTE: Settlement and entry of Orders 1s dealt with in Order 36 of the
Federal Court Rules.

IN THE FEDERAL COURT )
OF A U S T m L 4 1

WESTERN AUSTRALIA )
DISTRICT REGISTRY 1
GENERAL DIVISION

) No. WAG 172 of 1992

B E T W E E N : BENJAMIN JOHN MAINSTONE

Applicant
and
THE PUBLIC TRUSTEE
First Respondent

JUNE HONORA AYRES and
DESMOND THOMAS AYRES
Second Respondents

CORAM: FRENCH J.
30 October 1992

EX TEMPORE REASONS FOR JUDGMENT

This is an application a e d in the Court on 2 October 1992 by Benjamin

John Mainstone, the son of Maude Sylvada Mainstone who died on 17 April 1992 at

the age of 92 years. Mr Mainstone seeks a declaration pronouncing against the validity of his mother's will dated 2 February 1989 and a declaration that the estate be

administered and distributed as if on an intestacy. The Public Trustee is named…

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.

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Details

Case: [1992] FCA 1003
Decision Date: 30 Oct 1992

CaseChat Overview and Summary

In the Federal Court of Australia, Benjamin John Mainstone sought a declaration that his mother's will was invalid due to her alleged lack of testamentary capacity at the time of its execution. The Public Trustee was named as the first respondent, and the testatrix's daughter and son-in-law, June Honora Ayres and Desmond Thomas Ayres, were named as second respondents. The legal issues before the Court were whether the Federal Court had jurisdiction to hear the matter and, if so, whether third-party discovery should be granted to obtain medical records relating to the testatrix.

French J. found that the Federal Court did have jurisdiction under the Jurisdiction of Courts (Cross-vesting) Act 1987; however, the Court decided that the matter should be transferred to the Supreme Court of Western Australia, as the administration of probate jurisdiction traditionally fell under the purview of the State Supreme Courts. The Court found that the interests of justice required the proceedings to be determined in the Supreme Court, and the matter should not be fragmented between different courts. French J. also dismissed the applicant's motion for third-party discovery, finding that the applicant had not demonstrated sufficient grounds for it.

The Court made the following orders: The applicant's motion was dismissed, and the applicant was to pay the respondent's costs of the motion. The proceedings were to be transferred to the Supreme Court of Western Australia under s.5(4) of the Jurisdiction of Courts (Cross-vesting) Act (Cwth), and the applicant was to pay the respondent's costs of the motion.

Orders