Background
Devan Isaac Jack Brown and Lyndon Lewis Francis, apparently adult children of the deceased, applied in an estate matter and sought to have the application determined on the papers. The materials included close to 100 pages and six authorities, despite factual issues requiring resolution.
The applicants’ solicitor also informed the judge’s associate by email that two people with potential interests in the estate had not been served before the listing. The email asked whether the judge was content to determine the application on the papers or instead adjourn it to permit service.
The Court’s Holding
Johnstone J refused the request for determination on the papers and adjourned the substantive application to a date to be fixed. The Court held that the matter was not suitable for a papers determination, particularly given the factual issues and the volume of material requiring assessment.
The Court criticised the solicitor’s approach. It said it was inappropriate to place submissions in an email to the associate or ask the judge to provide advance legal or procedural advice about whether the proposed course was sufficient. The asserted simplicity or modest value of the estate was not relevant to whether the matter should be heard on the papers.
Key Takeaways
- An estate application involving factual issues may be unsuitable for determination on the papers.
- Solicitors must exercise forensic judgment about whether a papers application is appropriate.
- The Court will not give advance legal or procedural advice through communications with a judge’s associate.
Why It Matters
The decision is a procedural warning for estate practitioners: a papers application must be genuinely capable of determination without an oral hearing, rather than requiring the judge to work through extensive evidence and authorities to resolve contested matters.
It also underscores the need to address service and procedural issues through proper court processes, not informal requests for judicial guidance.