Ban v The Public Trustee of Queensland

[2015] QCA 18

Queensland Court of Appeal

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Interrogate

Catchwords

1. Succession
2. › Probate and Letters of Administration
3. › Jurisdiction and Discretion of Court
4. › Judicial advice to trustees
5. › Public Trustee seeking opinion of court on ademption of specific bequest
6. › Whether s 134 of Public Trustee Act 1978 (Qld) unconstitutional
7. › Whether jurisdiction permits court to entertain hypothetical questions
8. › Historical development from Lord St Leonards' Act 1859
9. › Public Trustee Act 1978 (Qld), s 134
1. Trusts
2. › Judicial advice jurisdiction
3. › Nature and scope of trustee's right to seek court's opinion, advice or direction
4. › Exception to court's ordinary function of deciding disputes between competing litigants
5. › Protective jurisdiction in respect of deceased estates
6. › Trusts Act 1973 (Qld), ss 96, 97
1. Succession
2. › Wills
3. › Ademption
4. › Specific bequest of proceeds of sale of real property
5. › Property sold prior to testator's death
6. › Whether specific gift adeemed
1. Practice and Procedure
2. › Judgments and Orders
3. › Setting aside perfected orders
4. › Whether Court of Appeal has inherent power to set aside its own perfected orders
5. › No inherent jurisdiction to review own decisions

Quick Take

Section 134 of the Public Trustee Act 1978 (Qld) confers a valid protective jurisdiction enabling the Public Trustee to seek the court's opinion on questions arising in the course of duties, including questions that might be characterised as hypothetical in ordinary inter-partes litigation. The only jurisdictional bar is that the question must arise under the Act or in the course of the Public Trustee's duties. Authorities dealing with the court's role in adversarial litigation (including the prohibition on hypothetical questions) are not applicable to this jurisdiction. The Court of Appeal has no inherent power to set aside its own perfected orders.