Public Trustee and Guardian v Dirkis

[2023] ACTSC 316

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Public Trustee and Guardian v Dirkis

Citation: 

[2023] ACTSC 316

Hearing Date: 

2 November 2023

Decision Date: 

2 November 2023

Before:

Mossop J

Decision: 

1.    Dismiss the application for orders 2 and 4 in the application in proceedings dated 2 June 2023.

Catchwords: 

PROBATE – APPLICATION FOR JUDICIAL ADVICE – Where application sought in the context of a dispute likely to be the subject of further proceedings – where application seeks restoration of grave plot to prior condition – no reference to applicable legal principle – where application seeks orders against non-party – application dismissed

Parties: 

The Public Trustee and Guardian in its capacity as the administrator of the estate of Kathleen Mary Dirkis (Plaintiff)

Paul Dirkis (Defendant)

Representation: 

Counsel

G Blank ( Plaintiff)

Self-represented ( Defendant)

Solicitors

Farrar Gesini Dunn ( Plaintiff)

Self-represented (Defendant)

File Number:

PRO 513 of 2011

MOSSOP J:  

Introduction

1. These proceedings were listed before me to deal with an application for judicial advice. There was also an application in proceeding filed by Paul Dirkis seeking certain orders. I concluded that it was not possible to deal with the application for judicial advice because of other proceedings which were in the process of being commenced, the cost of which would or may be payable out of the estate. Given that the purpose of the judicial advice was to permit the estate to be finalised, the other impending proceedings undermined that hope. Of the five matters identified in the application in proceeding that were intended to be heard at the same time, three of those raise matters likely to be the subject of the further proceedings. Those matters involved an examination of the history of the estate and whether or not an agreement between beneficiaries was reached in 2013. Those were issues likely to be dealt with in the further proceedings on a final basis and I considered that it was not appropriate to attempt to deal with them twice, once for the purpose of some interlocutory orders and again for the purpose of final determination of further proceedings brought by Mr Dirkis. These conclusions were reached without any significant opposition from the parties.

2. That left two orders in Mr Dirkis’ application in proceeding dated 2 June 2023. They were as follows:

   (a)Order 2, that the Public Trustee and Guardian complete the burial of the testator and pay for the grave works to be completed.

   (b)Order 4, that Dr Michael Dirkis deliver to Paul Dirkis a digitalised copy of the “home movies” within seven days.

3. Order 2 is based upon evidence that the body of the deceased was buried in a plot which also contained the ashes of Mr Dirkis (Paul Dirkis’ father) and the body of Paul Dirkis’ brother. He gave evidence that, at some point, his sister Aurora took control of the grave plot. The contractual basis for the reservation of the grave plot and any “taking control” was not put into evidence. Two photographs were tendered. One was taken prior to Aurora taking control of the grave plot and the other taken in April 2017. The April 2017 photograph shows that half of the double grave plot is no longer covered with decorative stones. This appears to be the principal complaint. Also tendered was a document signed by the deceased on 2 February 1997, described as a codicil to her will. That indicates that the deceased wished to be buried with her husband and son and indicated that her grave was to be fixed with her name and the names of her son and husband.

4. The deceased died on 21 September 2009. Paul and Michael Dirkis were granted probate on 4 October 2011. Paul and Michael Dirkis were removed as executors by consent on 9 August 2017 and the Public Trustee and Guardian appointed in their place. There is no evidence as to when the burial occurred. It is likely to have been shortly after the deceased’s death. Funeral expenses are payable out of the estate. There is no evidence as to what the funeral expenses were. There is no claim that those expenses are outstanding.

5. No legal foundation for an obligation to restore the existing grave plot to the condition that it was in prior to the burial was identified. No legal foundation for an obligation to maintain the gravesite has been identified. Paul and Michael Dirkis were both executors at the time of her death. That Paul is unhappy at the extent to which the existing grave plot was restored after or as part of the burial does not create an obligation upon a subsequent executor to do what he and his brother did not. In those circumstances, it is not appropriate to make any order that the Public Trustee and Guardian undertake or pay for any works on the gravesite. As a consequence, order 2 in the application in proceeding dated 2 June 2023 should be dismissed.

6. I also made an order dismissing order 4. At the point where I dismissed the application for that order, I had not heard any evidence, but Mr Dirkis had articulated the basis for seeking that order. It was said to arise out of some breach of his duty as trustee arising from his conduct as a joint executor of the estate between 4 October 2011 and 9 August 2017. The reason that I dismissed that aspect of the application was that the orders sought were directed to a non-party. I was not satisfied that any such order could be made without Mr Michael Dirkis being a party to the proceedings.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop

Associate:

Date: