The Jurisdiction of the District Court in Trust and

Succession

STEP Queensland Lunchtime Seminar

Brisbane

Judge Bernard Porter QC

21 September 2021

2

Contents

THE DISTRICT COURT: AN INTRODUCTION ............................................................ 3

CIVIL JURISDICTION UNDER THE DCA ..................................................................... 4

Substantive Jurisdiction .................................................................................................... 4 Powers of the Court ........................................................................................................... 6 Valuation of land for jurisdiction purposes..................................................................... 7 Valuation for jurisdiction purposes ‘conclusive’ ............................................................ 8

Consent jurisdiction ......................................................................................................... 10

EQUITABLE MONEY CLAIMS: S. 68(1)(A)(I) ............................................................. 11

ADMINISTRATION OF ESTATES: S. 68(1)(B)(VII) .................................................... 12

EXECUTION OF TRUSTS: 68(1)(B)(VIII) ...................................................................... 15

FAMILY PROVISION: S. 68(1)(B)(X).............................................................................. 17

Multiple applicants? ........................................................................................................ 17 Form of orders.................................................................................................................. 19

The numbers ..................................................................................................................... 20

SOME OTHER RELEVANT HEADS OF JURISDICTION .......................................... 20

Sale or partition under the Property Law Act: s. 68(1)(b)(vi) ....................................... 20

Construction of written instruments: s. 68(1)(b)(xiii) .................................................. 21 Relief from forfeiture under the Property Law Act: s. 70 ............................................. 21

FORMAL REQUIREMENTS FOR INVOKING JURISDICTION .............................. 22

TRUST AND ESTATE JURISDICTION AND THE DISTRICT COURT ................... 25

Limitations on the success of the reform project .......................................................... 25

Hard civil jurisdictional limits at all? ............................................................................ 26 Conclusion ........................................................................................................................ 27

3

THE DISTRICT COURT: AN INTRODUCTION*

[1] The District Court has a long but interrupted history in Queensland.

Embarassingly, the Court began its first life as part of the District Court of NSW

when District Courts were established for that colony before Queensland became a

separate colony in 1859.1 Three District Courts were established in Queensland by

amendment of the NSW statute in 1865. Thankfully, the District Courts were

given a maroon statute in 1867.2 Their civil jurisdiction was then, as it is now,

defined by reference to causes of action and whether, directly or indirectly, by

reference to remedies. They were given jurisdiction over personal actions, actions

for partnership accounts and recovery of possession, with a monetary limit of 200

pounds. The Courts also had criminal jurisdiction over indictable offences carrying

a maximum penalty of 14 years.

[2] The Courts were given jurisdiction over actions for the amount of the distributive

share under an intestacy, or of any legacy under a will, where the amount sought

was limited to 200 pounds.3

[3] The civil jurisdiction did not develop much beyond that for the next 120 years.

[4] In 1921, the District Courts were abolished.4 The reasons for that occurring were,

according to the leading history of the Supreme Court of Queensland, never really

identified, though the effect of the abolition was to absorb the District Court Judges

into the Supreme Court, seemingly for efficiency reasons.5 That turned out to be a

bad idea. The pressure on the Supreme Court increased continually over the

succeeding decades. The District Courts were re-established in 1958 as the

solution.6 The step was a controversial one at the time, but within a few months, it

had proved such a success that all resistance melted away.7 The re-established

Courts had equivalent jurisdiction to the Courts which had been abolished. They

had no equity, trust or succession jurisdiction to speak of.

[5] The current statute which regulates the Court is the District Court of Queensland

Act 1967 (Qld) (the DCA).8 Despite various amendments to the monetary limit, by

the mid-80s, the Court’s civil jurisdiction had not moved far from that which was

conferred on the original District Courts in the 1860s.

* I am grateful to John McGill SC, a retired Judge of the District Court of Queensland, for his valuable

comments on a draft of this paper. 1 22 Vict. No. 18 (1858). 2 31 Vict. No. 30 (1867). 3 District Courts Act of 1867, s. 43. 4 Supreme Court Act of 1921. 5 BH McPherson, The Supreme Court of Queensland 1859-1960: History, jurisdiction, procedure

(Butterworths, 1989) at p. 313. In 1914, Labor members of a select committee investigating District Courts

had recommended abolition. One of their number, Mr T Theodore, was Premier in 1921: D Beanland, A Court

Apart: the District Court of Queensland (SCQ Library, 2009) at p. 107. 6 The District Courts Act of 1958. 7 BH McPherson, op. cit, at pp. 388-389. 8 Originally the District Courts Act 1967 (Qld). By the Justice and Other Legislation (Miscellaneous

Provisions)(No 2) Act 1997 (Qld), the multiple District Courts were united into a single District Court.

4

[6] There was a major reform to civil jurisdiction of the Court in 1989 by the District

Courts Act and Other Acts Amendment Act 1989 (Qld). That Act largely adopted

the recommendations of QLRC Report No. 36 “A Bill to Alter the Civil Jurisdiction

of the District Court of Queensland”, published 20 December 1985 (the 1985

Report). The Commissioners who signed the 1985 Report included, amongst

others, Justice McPherson, Justice Williams, Richard Cooper QC (subsequently

Justice Richard Cooper of the Supreme Court and Federal Court), and Sir John

Rowell (subsequently grandfather to my associate).

[7] The 1989 Amendment Act introduced the current ss. 68 to 70 DCA,9 which are the

primary source of the civil jurisdiction of the District Court. Those provisions have

not been changed materially since their introduction in 1989, making the 1985

Report a very useful reference tool for examining the jurisdiction of the Court and

the policy judgments which stand behind the jurisdiction conferred.

[8] The monetary limit was set at $200,000 by the 1989 Amendment Act. The

monetary limit was increased following the reforms recommended in the Review of

the Civil and Criminal Justice System in Queensland (2008) (the Moynihan

Report) to $750,000. It is worth noting that the Moynihan Report recommended

that the monetary limits be reviewed at least every five years. There is apparently

nothing more permanent than a temporary monetary limit.

CIVIL JURISDICTION UNDER THE DCA

[9] The District Court is a Court of statutory jurisdiction, both criminal and civil. It is

necessary to bring any proceeding, indictment or appeal within the scope of a

statutory provision conferring jurisdiction.10 Part 5 DCA contains the most

important provisions relating to civil jurisdiction. There are some general matters

arising from that Part which all litigants in the Court should keep in mind.

Substantive Jurisdiction

[10] Section 68(1) is the principal provision which confers civil jurisdiction on the

District Court.11 It is convenient to set it out in full. The subsections which are of

interest to this forum are underlined. Section 68 provides:

68 Civil jurisdiction

(1) The District Court has jurisdiction to hear and determine—

(a) all personal actions, where the amount, value or damage sought to be

recovered does not exceed the monetary limit including the following—

(i) any equitable claim or demand for recovery of money or

damages, whether liquidated or unliquidated;

9 As ss. 66 to 68. 10 Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R 192; Matelot Holdings Pty Ltd v Gold

Coast City Council [1993] 2 Qd R 168. 11 There are, of course, numerous other provisions which confer specific civil jurisdiction, but they are beyond

the scope of this paper. See the annotations to s. 68 in Volume 2 Civil Procedure Queensland Looseleaf

Service (LexisNexis).

5

(ii) any claim for detention of chattels;

(iii) any claim for rent or mesne profits;

(iv) any claim for any debt, damages or compensation arising under

any Act; and

(b) the following actions and matters—

(i) for enforcing by delivery of possession any mortgage,

encumbrance, charge or lien, where the amount owing in respect

thereof does not exceed the monetary limit;

(ii) for relief against fraud or mistake, where the damage sustained or

the estate or fund in respect of which relief is sought does not

exceed in amount or value the monetary limit;

(iii) for specific performance of an agreement for the sale or other

disposition of land or an interest in land or of any other property,

where the value of the land or interest or property does not exceed

the monetary limit, or in lieu of or in addition to specific

performance, damages not exceeding the monetary limit;

(iv) for rectifying, delivering up or cancelling any agreement, where

the amount in dispute or the value of the property affected does

not exceed the monetary limit;

(v) for a declaration of partnership or dissolution or winding up of, or

otherwise relating to, any partnership, where the property of the

partnership does not exceed in amount or value the monetary

limit;

(vi) for the sale or partition or division of property pursuant to the

Property Law Act 1974, section 38 or 41, where the property does

not exceed in amount or value the monetary limit;

(vii) for the administration of the estate of a deceased person, where

the estate does not exceed in amount or value the monetary limit;

(viii) for the execution of a trust or a declaration that a trust subsists,

where the estate or fund subject or alleged to be subject to the

trust does not exceed in amount or value the monetary limit;

(ix) relating to the custody, maintenance or advancement of an infant

including the appointment of a guardian to the property or person

of an infant but not so as to authorise any order under this

provision affecting assets or property of an infant exceeding in

amount or value the monetary limit;

(x) for family provision pursuant to the Succession Act 1981, sections

40 to 43, but so that any provision resulting from an order made

by the court shall not exceed in amount or value the monetary

limit;

(xi) to recover possession of any land, where the value of the land

does not exceed the monetary limit;

(xii) to restrain, whether by injunction or otherwise, any actual,

threatened or apprehended trespass or nuisance to land, where the

value of that land does not exceed the monetary limit, or, in lieu

of or in addition to such an injunction, damages not exceeding the

monetary limit;

(xiii) for the determination of any question of construction arising

under a deed, will or other written instrument, and for a

declaration of the rights of the persons interested where the sum

or the property in respect of which the declaration is sought does

not exceed in amount or value the monetary limit;

6

(xiv) for the appointment under the Public Trustee Act 1978, section

104 of the public trustee as administrator of any unclaimed

property, where the gross value of the property does not exceed in

amount or value the monetary limit.

(2) In this section—

"monetary limit" means $750,000.

[11] I will look at some of these provisions in more detail below. However, some of our

discussion will focus on construing particular conferrals of jurisdiction. Such

provisions should be construed broadly:12

Courts resist finding restrictions or limitations upon provisions conferring jurisdiction. The

standard modern statement of principle is from an admiralty case:13

It is quite inappropriate to read provisions conferring jurisdiction or granting powers to

a court by making implications or imposing limitations which are not found in the

express words.

For example, the provision granting a right to appeal from decisions of the Supreme Court of

Victoria at first instance was construed by Gaudron, Gummow, Hayne and Callinan JJ as

follows:14

Section 17(2) is a provision which confers jurisdiction upon a court and it is, on that

account alone, to be given no narrow construction. Rather, it is to be construed with all

the amplitude that the ordinary meaning of its words admits.

Further examples may be found in relation to the generality of s 68(2) of the Judiciary Act

(which is addressed further below)15 and to the (statutory) jurisdiction of Supreme Courts to

rectify a will16 or to give judicial advice.17

Powers of the Court

[12] The balance of s. 68, along with ss. 69 and 70, are ancillary provisions facilitating

the exercise of the jurisdiction conferred by s. 68(1). They must be construed by

reference to their ancillary character. The District Court’s civil jurisdiction is

defined by reference to the provisions in s. 68(1), and the other provisions cannot

be construed so as to rise above their source.

[13] This is important to keep in mind when construing s. 69 in particular. That section

relevantly provides:

69 Powers of District Court

(1) Subject to this Act and to the rules of court, the District Court has, for the purposes

of exercising the jurisdiction conferred by this part, all the powers and authorities of

the Supreme Court, including the powers and authorities conferred on the Supreme

Court by an Act, and may in any proceeding in like manner and to like extent—

(a) grant such relief or remedy; and

12 M Leeming, Authority to Decide – The Law of Jurisdiction in Australia (The Federation Press, 2nd ed, 2020)

at p. 135. 13 Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 at 421; see

also the authorities collected in Beck v LW Furniture Consolidated (Aust) Pty Ltd [2012] NSWCA 76 at [131]

(there are many others). 14 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72 at [11]. 15 R v Gee (2003) 212 CLR 230 at [13]; see also at [39]. 16 Re Estate of Dawes (decd) (2011) 112 SASR 117 at [16]. 17 Macedonian Orthodox Community Church St Petka Incorporated v Petar (2008) 237 CLR 66 at [55]; and

see Public Guardian v Guardianship and Administration Board [2011] TASSC 31 at [26].

7

(b) make any order, including an order for attachment or committal in

consequence of disobedience to an order; and

(c) give effect to every ground of defence or matter of set-off whether

equitable or legal;

as may and ought to be done in like cases by a judge of the Supreme Court.

Example of power conferred on the Supreme Court by an Act—

The power of the Supreme Court under the Land Title Act 1994, section 127

(Removing a caveat) to order that a caveat be removed.

(2) Without affecting the generality of subsection (1) , the District Court shall, in any

proceedings in which jurisdiction is conferred under this part, have power to grant

relief—

(a) by way of a declaration of rights of the parties; and

(b) by way of injunction, whether interim, interlocutory or final, in the

proceedings; and

(c) by staying the proceedings or part thereof; and

(d) by appointing a receiver including an interim receiver.

[14] Care must be taken with these provisions. Take, for example, the power to make

declarations. Such a power is a plenary one in the Supreme Court. Declarations

can be made about almost any matter in the Supreme Court, subject only to

considerations of utility, and where the declaration is not sought to resolve a matter

or dispute (i.e that it is sought on a hypothetical issue). In the District Court, it has

an additional limitation:18 the declaration must be made “for the purpose of

exercising the jurisdiction conferred” by s. 68 and the other jurisdiction-conferring

provisions in Part 5 DCA.19

Valuation of land for jurisdiction purposes

[15] Section 68(3) deals with valuation. Most relevant here is s. 68(3)(b) dealing with

valuation of land. It provides:

…the value of land shall be the most recent valuation, current at the time of instituting the

proceedings, made by the valuer-general under the Land Valuation Act 2010, or, if there is

no such valuation in respect of the land, the current market value at that time of the land

exclusive of improvements thereto…

[16] It is the unimproved value of land which is the focus of valuation. Where one is

dealing with estate or trust assets with valuable improvements, such as palatial

residences and/or commercial property, the market value with improvements will

usually be considerably more than the unimproved value.

18 Though I recognise that at a high level of generality, the jurisdiction to grant declarations is confined by the

scope of jurisdiction for Courts of general jurisdiction in various ways: see PW Young QC, Declaratory

Orders (Butterworths, 2nd ed, 1984) at [209]. 19 An example of this distinction being recognised is MacDonald v Clark [2012] QDC 290 and see also

Matelot Holdings Pty Ltd v Gold Coast City Council [1993] 2 Qd R 168 at 170.30.

8

Valuation for jurisdiction purposes ‘conclusive’

[17] Section 68(4) is also of interest to all litigants contemplating choosing the District

Court, but worried about the consequences of jurisdictional error. That section

provides:

Where any question arises as to the amount or value for the purpose of jurisdiction under this

part the decision of the District Court shall be conclusive as to that matter.

[18] The section has three elements:

(a) There must be a “decision” of the Court;

(b) The decision must be of a “question…as to amount or value”; and

(c) That question must be “for the purpose of jurisdiction”.

[19] If those three elements exist, then the decision is conclusive. The elements are not

likely to give rise to difficulty. The following comments are worth making.

[20] First, it is strongly arguable that the requirement for a decision requires an express

determination by the Judge. That requirement might not be met if the parties and

the Court simply do not turn their minds to the issue, such that the Court assumes

jurisdiction by default.

[21] Second, the question as to amount or value will be informed by the particular

subsection relied upon as conferring jurisdiction. So for s. 68(1)(b)(vii), the

question will be the amount or value of the estate of a deceased person. However,

that probably does not mean that there has to be a decision on every aspect of the

estate. For example, if there is only one contentious or uncertain question as to

amount or value, and that is decided by the Court (such as the value of a stamp

collection or antique cars or military medals, to give some examples), that decision

is conclusive. It can be added to other uncontentious evidence of amount or value

to establish jurisdiction.

[22] Third, the provision makes the decision of the District Court conclusive only for

the purpose of jurisdiction “under this part”. In a matter where the source of the

jurisdiction lies elsewhere, the conclusiveness will not apply.

[23] Fourth, it is probably obvious, but the decision is conclusive only for purposes of

jurisdiction. That example now brings me to the question of what “conclusive”

means in practice. One consequence of the subsection is that it is not open to a

party to challenge, in an appeal from the judgment of the Court, the decision by the

Court as to amount or value, to the extent it is made for the purpose of contending

that the Court did not have jurisdiction. That does not make the finding immune

from any challenge though.

[24] Let me give an example of how that might operate in practice. An applicant seeks

further provision from an estate. The Court decides that for the purpose of the

determining jurisdiction under s. 68(1)(b)(x), the value of a life interest in a

residential property is $100,000 which, taken together with a legacy of $650,000, is

9

within jurisdiction to order. The Court then exercises its discretion to make

provision in the form of the life interest and the legacy.

[25] The personal representative considers that the Court has erred in making provision

because the true value of the life interest was $300,000 and, if that amount is

correct, the provision ordered greatly exceeded adequate provision for proper

maintenance and support such as to disclose error in the exercise of the discretion.

[26] In my opinion, in that appeal, the question of the value of the life interest is open to

be litigated for the purpose of proving that the Court erred in exercising the

discretion to award that provision. However, it is not open to either party in the

appeal to contend that the Court did not have jurisdiction to make the order for

provision for that reason. The Court’s determination of that matter is conclusive on

the question of jurisdiction.

[27] However, in my respectful view, conclusive does not, in this case, mean absolutely

conclusive. An inferior Court cannot conclusively determine its own jurisdiction.

However, jurisdiction is ultimately a question of statutory construction. Subject to

the limitations imposed by the Commonwealth Constitution, the Queensland

Parliament can define the scope for supervision of the exercise of jurisdiction of,

amongst other entities, inferior State Courts. Thus, review for jurisdictional error

first requires two statutory construction tasks to be undertaken:

(a) First, what provisions identify the jurisdiction of an inferior Court?; and

(b) Second, to what extent has the Parliament sought to limit the scope for

review of the decision of the inferior Court on its own jurisdiction?

[28] Section 68(1) and (2) inform the first task. Section 68(4) informs the second task.

[29] There is, in practice, no constitutional limit on the power of the Queensland

Parliament to exclude from review a decision of the District Court on its own

jurisdiction. If the Parliament wanted to exclude such review of the monetary

limits on jurisdiction, it could simply repeal the monetary limits themselves.

Nevertheless, however broad s. 68(4) might be, it does not repeal the monetary

limits. Rather, it purports to make conclusive a finding of fact as to amount or

value of something for the purpose of determining if a matter is within the

jurisdiction confined by the monetary limit. In my opinion, the purpose of s. 68(4)

is to confine, so far as possible, challenges to jurisdiction on monetary limits while

maintaining them as broadly confining the Court’s jurisdiction.

[30] In my view, this leaves room for review for jurisdictional error, though on a very

narrow, dare I say theoretical, basis. That basis is where it is possible to establish

that a purported decision by the Court as to amount or value under s. 68(4) cannot

in law amount to such a decision. Grounds to establish jurisdictional error in that

narrow way would include bad faith and improper purpose, and possibly where the

decision is induced by fraud. There might also be the possibility of reviewing the

decision on grounds analogous to Wednesbury unreasonableness. However, that

would probably be it.

10

[31] The full articulation of the scope for review of the Court’s decision under s. 68(4)

is a complex and subtle task. For those who are concerned about certainty in

proceedings in the District Court, that complexity is, in practice, probably a

guarantee of certainty. The realpolitik of the situation is that if you have a

substantive appeal point based on a matter going to the value given by the Court to

an asset or estate, you can argue it in an appeal of the underlying decision. If you

do not, then there is unlikely to be any basis to avoid the judgment on jurisdictional

grounds alone, because of the value given to the property for jurisdictional

purposes. And what is the harm in that after all?

Consent jurisdiction

[32] Another provision worth mentioning is s. 72(1) DCA. That section provides that if

parties agree in writing that the Court shall have jurisdiction to try any action which

might be brought in the Supreme Court, the Court shall have that jurisdiction. This

is most easily applied where the monetary limit is the issue. However, it is not

restricted in that way. On my reading of the provision, it extends to any civil

proceeding which might be brought in the Supreme Court by claim.20

[33] Further, the requirement in s. 72(2) DCA, that the consent be recorded in a

memorandum of the kind there specified, does not go to jurisdiction if parties have

in fact agreed to confer jurisdiction: Eyres v Butt [1986] 2 Qd R 243.

[34] I mention this because it seems to me that, under the rubric of this provision, the

whole range of the Supreme Court’s statutory and general law jurisdiction could be

exercised by the District Court, by consent of the parties, possibly subject to some

residual restriction where the proceeding was of a kind which could not be brought

by claim (as opposed to originating application).

[35] The consent jurisdiction has been in the statute regulating the District Court since

the 1860’s. However, in the 1985 Report, it was said that “in practice very little

use is made of this facility”.21 In my experience, that remains true today.

Counterclaim jurisdiction

[36] Finally, I mention s. 29 Civil Proceedings Act 2011 (Qld). That provision

authorises a counterclaim for any relief in any proceeding in the District Court

subject to an application to the Supreme Court to bring the proceedings or the

counterclaim into that Court within 14 days after the service of the counterclaim.

Again, while this most commonly arises in respect of counterclaims for money, it is

not limited to such claims. Any counterclaim for relief not within the District

Court’s jurisdiction could be brought in the Court.

20 There might be some debate about that, given the definition of action in s. 3 DCA is “any civil proceeding

commenced by plaint”. However, if that is a reference to a civil proceeding in the Supreme Court, it would be

read as meaning “proceeding”: see s. 149 DCA and (in the context of the equivalent Supreme Court provision)

Fordyce v Kordamentha Real Estate Pty Ltd [2017] QSC 289 at [31]. If it were read as referring to a civil

proceeding commenced in the District Court by plaint, it would now be read as referring to a proceeding

commenced by claim: again, see s. 149 DCA. 21 At p. 9.

11

[37] One note of warning on both consent and counterclaim jurisdiction. It might not be

possible to bring proceedings under those provisions in the District Court where the

jurisdiction is conferred on the Supreme Court by a Commonwealth statute. It is

beyond the scope of this paper to analyse that complexity.

EQUITABLE MONEY CLAIMS: S. 68(1)(a)(i)

[38] The subsection uses the language of personal actions in the chapeau provision. In

general law, a personal action is an action at law to recover money. However, it is

plain that that meaning is extended by s. 68(1)(a)(i) to confer jurisdiction for any

equitable claim or demand for money or damages, whether liquidated or

unliquidated.

[39] The breadth of the jurisdiction conferred by s. 68(1)(a)(i) (and implicitly, the

approach of Courts to such provisions) is demonstrated by Ron Kingham Real

Estate Pty Ltd v Edgar [1999] 2 Qd R 439. That case involved s. 4(c) Magistrates

Courts Act 1921 (Qld), which conferred jurisdiction on the Magistrates Court in

substantially the same form as that used in s. 68(1)(a)(i).

[40] In that case, a courageous Magistrate had taken the view that the conferral of

jurisdiction extended to conferring jurisdiction to make an order that beneficiaries,

who had taken a transfer of all the assets of a trust, indemnify the trustee in respect

of a judgment obtained against the trustee by a trust creditor.

[41] The cause of action relied upon is one which would be well-known to many in this

audience. It was explained by McPherson JA as follows. After observing that a

trustee has an equitable lien over the trust assets to secure his or her right to

indemnity, his Honour observed:

The plaintiff does not found its claim on the right of a trustee to be indemnified out of the trust

assets. Instead, it relies in this action on the alternative right which a trustee has to be

indemnified by the beneficiaries personally for liabilities properly incurred in the trust. That

right to personal indemnity from a beneficiary has been recognised in various authorities

including, most prominently, the decision of the Privy Council in Hardoon v. Belilios [1901]

A.C. 118, 125, where it was said the obligation of a beneficiary to indemnify the trustee rests

on “the plainest principles of justice”, which require “that the cestui que trust who gets all

benefit of the property should bear its burden”. See also Trautwein v. Richardson [1946]

A.L.R. 129, 134-135; and Marginson v. Ian Potter & Co. (1976) 136 C.L.R. 161, 175-176,

where Jacobs J. quoted with approval a passage from Halsbury’s Laws of England, 3rd ed.,

vol. 38, at 943-944, describing the trustee as having the right to an indemnity “from a person

sui juris who is beneficially entitled” to the trust property. The right of a trustee to indemnity

from the beneficiary is capable of being expressly excluded; but the terms of the trust

instrument are not in evidence, and there is nothing at all to suggest that the indemnity was

excluded in the case of this Trust.

A trustee’s right of indemnity is hedged about by various conditions or requirements which

sometimes make it difficult to enforce, particularly when it is the personal and not the

proprietary right that is being relied on. However, by one of those happy strokes of fortune

said to favour the brave (or, in this instance, the well-advised), all the relevant conditions are

fulfilled in the present case.

[42] His Honour then concluded that the judgment creditor could be subrogated to the

right of the trustee to indemnity from the beneficiary (an interesting discussion in

itself). His Honour then held that the Magistrates Court clearly had jurisdiction to

12

hear and determine such a claim, setting out the potted history of the provision as

follows:

The magistrates court is not a court of equity; but it is a court which, for limited purposes, is

invested with equitable jurisdiction. By s.4(c) of the Magistrates Court Act 1921, in such a

court an action may be commenced:

“in which a person has an equitable claim or demand against another person in respect

of which the only relief sought is the recovery of a sum of money or of damages,

whether liquidated or unliquidated, and the amount claimed is not more than $40,000.”

In conformity with what is now s.11 of the Act, para.9 of the plaintiff’s statement of particulars

in this case disclosed that the claim was based on equitable grounds.

A provision in the terms of s.4(c) of the Act formerly appeared in s.68 of the District Court

Act 1967. It is now embodied in s.68(1)(a)(i) of that Act. Its history and origins are traced in

Barbagallo v. J. & F. Catelan Pty. Ltd. [1986] 1 Qd.R. 245. In that instance the jurisdiction

was exercised to sustain a claim for equitable damages in lieu of injunction for apprehended

future injury to land. In the much earlier decision of Noagues v. Hope (1874) 4 Q.S.C.R. 57, it

was used to enable the plaintiff to obtain damages for breach of an informal agreement to grant

a lease without first having obtained specific performance of the agreement. The purpose of

the statutory provision, which originally stood as s.1 of the Equity Procedure Act of 1873, was,

in the words of its author Sir Samuel Griffith, “to abolish the distinction in money cases

between law and equity”. See Barbagallo v. Catelan [1986] 1 Qd.R. 245, 256.

There can be little doubt of the availability in the present case of the jurisdiction under s.4(c).

In Re Law Courts Chambers Co. (1890) 61 L.T. 668, 671, Stirling J. said that the expression

“creditor in equity” referred to the relationship existing between a person who said he was a

creditor and the alleged debtor “under which the debtor could be compelled in equity to pay to

the alleged creditor the equitable debt”. The plaintiff here satisfies that description.

[underlining added]

[43] Further, Davies JA expressly recognised that the statutory right to recover against

beneficiaries following a wrongful distribution of trust property, conferred by the

then s. 109 of the Trusts Act (now s. 113), was also one which fell within the scope

of s. 4(c) of the relevant Act.

[44] It is interesting to consider how far this provision could be pressed. I note the

underlined passage above. Taking that purpose, with the plenary approach to the

construction of jurisdiction provision, one might conclude that s. 68(1)(a)(i) should

be given a very broad construction and could extend to any equitable claim, trust

claim or claim arising in the law of succession for a sum of money.

ADMINISTRATION OF ESTATES: S. 68(1)(b)(vii)

[45] Section 68(1)(b)(vii) confers jurisdiction to hear and determine actions and matters:

for the administration of the estate of a deceased person, where the estate does not exceed in

amount or value the monetary limit.

[46] This provision was rather controversial at the time. A significant part of the

reforms proposed by the 1985 Report involved the conferral of equitable

jurisdiction on the District Court. The learned authors considered the lack of such

jurisdiction to be a significant weakness of the existing jurisdictional provisions

and proceeded to grant considerable equitable and related succession jurisdiction

13

on the Court.22 As will be seen, however, the approach taken to the definition of

that jurisdiction has not resulted in the District Court developing as a Court of

equity.

[47] This is probably most clearly the case in s. 68(1)(b)(vii). A search of the entire

database for all Queensland Courts returns not one case referring to this subsection.

That might not be surprising, given that the High Court described the

administration action as “old-fashioned” in 1961.23 The 1985 Report described

administration actions as being “sometimes not without complexity”.24

[48] A convenient summary of the action is as follows:25

The court may itself undertake the general administration of a deceased estate or trust,

although it rarely does. In Re Wilson (1885) 28 Ch D 457 Pearson J pointed out at 460 that in

former times no means existed to bring isolated questions arising under a will or trust before

the court for its determination. Only a general administration action, which cast the entire

burden of the trust upon the court, could be ordered. The general administration action was

"one of the greatest scandals of the profession": Re Blake (1885) 29 Ch D 913 at 918 per

Lindley LJ; see also McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623; 9

ACLR 926 at 633ff per Young J (NSWLR).

Changes in practice, recognised by Rules of Court and the availability of summary

proceedings to obtain the advice of the court: see [17.160] ff, have long enabled the court to

deal with isolated questions and the court will make a general administration order only

where there are questions that cannot be properly determined by other means: Re

Blake (1885) 29 Ch D 913; Hyman v Permanent Trustee Co of NSW Ltd (1914) 14 SR

(NSW) 348. Even then the court may restrict the administration order to a part of the trust

estate: Re Blake (1885) 29 Ch D 913. In Re Morish [1939] SASR 305 administration was

ordered where the trustees had carried on a business in breach of trust, had incurred losses

and had been evasive. A trustee or other person who seeks an administration order where the

matter in issue can be settled without such an order, or litigates vexatiously or capriciously,

may lose costs: Re Cabburn (1882) 46 LT 848; Re Blake (1885) 29 Ch D 913 at 917 per

Cotton LJ; cf Re Aitken [2020] VSC 432.

An administration action relates to questions arising in the administration of an estate as

between the trustees and their beneficiaries such as the recovery of income by the life

tenant: Phillipson v Downer [1904] SALR 128 and may not be sought to decide questions as

against persons claiming adversely to the estate: Re Giles (1890) 43 Ch D 391 at 398; Evans

v Evans (1910) 10 SR (NSW) 594 at 596; Hudson v Gray (1927) 39 CLR 473 at 502. Where

the court has made an administration order the trustee may not act inconsistently with it: Re

Viscount Furness [1943] Ch 415.

[49] An order for administration of the estate had the effect that the administration

would be specifically performed under the Court’s supervision, that nothing could

be done without the Court’s approval, that accounts would be taken to see what the

trust assets and liabilities were and that directions would be given as to how the

administration would be carried out.26

22 The 1985 Report at pp. 13 to 16. 23 Re Wood Deceased; Ebert v Union Trustee Company of Australia Limited [1961] Qd R 375 at 379. 24 The 1985 Report at p. 22. 25 HAJ Ford, WA Lee, M Bryan, J Glover & I Fullerton, The Law of Trusts (Westlaw online service) at

[17.9050]. 26 GE Dal Pont & KF Mackie, Law of Succession (LexisNexis Butterworths, 2nd ed, 2017) at 12.46; McClean v

Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 at 633G.

14

[50] As many of you would know, the old-fashioned administration action became a

byword for inefficiency and delay as long ago as the 1830’s. It required the whole

of the estate to be paid into Chancery, to be held there without interest, while an

account was taken, and only then would the administration proceed and any

specific points of dispute be resolved.27

[51] The administration action remains one which is known to the law, but its function

has largely been overtaken by other more efficient processes. They include the

right of personal representatives and trustees to approach the (Supreme) Court for

directions,28 the availability of summary construction applications, and so on.

[52] Plenary jurisdiction to resolve issues arising in the administration of deceased

estates is conferred by provisions of the Succession Act 1981 (Qld) (the Succession

Act). The most prominent example is s. 6(1) Succession Act. And of course, the

Succession Act confers specific jurisdiction on the Supreme Court, sometimes

novel, sometimes following the general law, in respect of numerous issues arising

in succession and administration.

[53] The effect of the replacement of the administration action with more efficient and

direct statutory powers has been welcome. However, it has had the effect of

leaving the District Court’s jurisdiction in relation to administration of deceased

estates and execution of trust estates inutile.

[54] There might be continued room for the general administration order in limited

circumstances, identified by Young J in McClean v Burns Philp Trustee Co Pty Ltd

(1985) 2 NSWLR 623 at 635. The examples identified included:

(a) Where the trustees cannot pull together;

(b) Where the estate was of a kind giving rise to recurring problems that

required frequent directions; or

(c) Where there is doubt as to the bona fides of a trustee.

[55] Even in those cases, however, easier alternatives to a general administration order

exist. Williams, Mortimer & Sunnucks29 observes that “it became the practice,

even when administration orders were made, to stay all except the accounts and

inquiries on which the assistance of the Court was actually required”. I have never

seen this done and do not know how it would work in practice, though it might

mean that much of what is done under other statutory provisions could be done in

the District Court under the administration jurisdiction. However, I am not inviting

anyone to give it a try.

[56] Despite the good intentions of the 1985 Report, the jurisdiction in administration of

deceased estates conferred on the District Court has been a failure.

27 McClean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623. 28 Trusts Act 1973 (Qld), s. 96. 29 A Learmonth, Williams, Mortimer & Sunncuks – Executors, Administrators and Probate (Sweet & Maxwell,

21st ed, 2018) at 57-02.

15

EXECUTION OF TRUSTS: 68(1)(b)(viii)

[57] Section 68(1)(b)(viii) confers jurisdiction to hear and determine actions and

matters:

for the execution of a trust or a declaration that a trust subsists, where the estate or fund

subject or alleged to be subject to the trust does not exceed in amount or value the monetary

limit.

[58] This was also novel jurisdiction for the Court recommended in the 1985 Report as

part of the policy of conferring equitable jurisdiction on the Court. It was adopted

directly from an existing provision in like terms conferring jurisdiction on the

English County Court.30 The 1985 Report does not explain what the learned

authors consider was comprised in an action “for the execution of a trust”. I have

searched in vain for a clear exposition of the scope of such an action. The

expression is not one which is explained in any Queensland decision I could locate,

nor in the leading texts, at least in those words.

[59] However, it seems to me that the action contemplated is that which lies with the

beneficiaries of a trust to compel the trustee to perform the trust. It is explained in

Jacobs’ Law of Trusts in Australia31 in this way:

The beneficiaries, or any one of them, may institute proceedings to compel the performance

of the trustee’s duty or to protect their beneficial interest in the trust property even though

that interest is only contingent. A failure by the trustee to carry out any particular duty will,

of course, be a breach of trust, giving rise to a right of action by a beneficiary and, if

sufficiently serious, will afford grounds for the removal of the trustee and the appointment of

a new trustee…

(footnotes omitted)

[60] Professor Dal Pont32 also deals with the kind of proceeding:

Central to the beneficiary principle is the notion, reflected in the classic statement of Sir

William Grant MR in Morice v Bishop of Durham, that, as the court does not take the

initiative in the enforcement of trusts, there must be someone to bring the matter before the

court, namely a definite object who can enforce the trust. What ensues is that beneficiaries

have standing to approach the court for an order to compel the trustees to properly perform

their duties and powers under the trust, as well as standing to seek relief for any breach of

trust: see [24.10]. The latter may involve seeking an injunction to prevent a (continuing)

breach of trust (see [24.115]), the appointment of a receiver to the trust property (see

[24.125]) or an award of monetary or proprietary remedies either to compensate the trust for

any loss caused by the breach or to make the trustees accountable for any illegitimate gain

they have thereby secured (see [24.30]-[24.90]). Beneficiaries’ standing can extend against

third parties who have breached an obligation owed to the trust, albeit generally only where

the trustee is unwilling or unable to pursue the matter on behalf of the trust: see [24.15],

[24.20]. A cause of action in personam may, though, be available to beneficiaries against a

third-party volunteer who has received trust property in breach of trust: see [24.130],

30 The 1985 Report at p. 23. 31 JD Heydon & MJ Leeming, Jacobs’ Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006) at

[2303]. 32 GE Dal Pont, Equity and Trusts in Australia (Thomson Reuters, 7th ed, 2019) at [20.10].

16

[24.135]. Essential, in each case, to the ability to properly enforce the trust is access by

beneficiaries to information regarding the management of the trust…

Beneficaries who are dissatisfied with the trustee’s management of trust property may

petition the court for the removal of the trustee and the appointment of another trustee, but

aside from the terms of the trust deed to the contrary, the court is disinclined to appoint a

beneficiary as trustee or to appoint a trustee who is not likely to be even-handed as between

the (classes of) beneficiaries: see [21.80].

As the trustee manages trust property for the benefit of the beneficiaries, it stands to reason

that beneficiaries can absolve the trustee from the consequences of failing to properly

administer the trust in accordance with its terms, whether by prior consent (see [24.160]),

subsequent acquiescence (see [24.165]) or a release (see [24.170]).

[61] An action for the execution of the trust can overlap with, or even include, an action

for remedies for breaching the trust. Of course, a personal action by the

beneficiaries for equitable compensation for breach of trust, or for an account to

recover the benefit from a breach of trust, would be within the Court’s jurisdiction

under s. 68(1)(a)(i). However, that provision would not give the Court jurisdiction

to give proprietary remedies, as such an action would not be an equitable claim for

recovery of money or damages.

[62] Based on the above passages, it might be argued that proprietary remedies are

available in such a proceeding as an action for the execution of the trust. However,

in that case, the monetary limit would apply differently to the two actions. This

situation demonstrates the unsatisfactory and obscure nature of the manner in

which jurisdiction is conferred on the Court in relation to trusts.

[63] Also unsatisfactory is the lack of clarity of the limits to an action for execution of

the trust. Would it extend, for example, to an action wherein the beneficiary sought

to review the exercise of a discretion by a trustee under a trust deed? That is not a

problem which confronts persons approaching the Supreme Court, given the

express power to review decisions of trustees conferred on that Court by s. 8(1)

Trusts Act 1973 (Qld).

[64] This issue directs attention to another flaw in the conferral of jurisdiction in

relation to the administration of trusts. The Trusts Act 1973 (Qld) provides a broad

range of express statutory powers to deal with many aspects of administration of

trusts. It contains, for example, the express power to give directions which so

significantly undermines the efficacy of the administration actions in estate

matters.33

[65] It might reasonably be argued that if there is a policy that the District Court should

have jurisdiction in trust matters, it should be made a Court for the purposes of the

Trusts Act 1973 (Qld), albeit again with a monetary limit if that was thought

necessary. The 1985 Report did consider such a course, it having been done

already in Victoria in respect of the Victorian County Court. The learned

Commissioners did not support such a course:

We do not favour the extension to the District Court of a jurisdiction as extensive as that

conferred in Victoria…Such matters are at present determined for the most part in Supreme

33 Trusts Act 1973 (Qld), s. 96.

17

Court Chambers in a relatively inexpensive manner. The Queensland Trusts Act 1973-1981

is a fairly radical piece of legislation and until some of its novel features become better

known and understood we consider that the powers it confers should not be extended to the

District Court.34

FAMILY PROVISION: S. 68(1)(b)(x)

[66] Jurisdiction is conferred on the District Court to hear and determine applications

for family provision under s. 41(1) Succession Act by s. 68(1)(b)(x) DCA. The

Court has jurisdiction to hear and determine actions and matters:

for family provision pursuant to the Succession Act 1981, sections 40 to 43, but so that any

provision resulting from an order made by the court shall not exceed in amount or value the

monetary limit.

[67] Section 68(1)(b)(x) defines jurisdiction by reference to the amount or value of the

order, not the size of the estate. The Court is given jurisdiction to deal with an

application in any estate, no matter how large, so long as the provision resulting

from the order is under the amount of $750,000. This seems to be increasingly

well-known, at least in this branch of the profession.

[68] In most cases, it is possible to form a pretty clear view as to whether there is any

prospect of more than $750,000 being awarded to a claimant, based on the

applicant’s general knowledge of the station in life of the testator. Further, outside

exceptional cases involving extreme need for an applicant, very large estates or

large contributions to an estate, it will be rare that any applicant has a realistic

prospect of obtaining an order for provision of more than $750,000.35 Senior

colleagues estimate that, at most, only one in five applications had any realistic

prospect of an order at more than $750,000. Given that those counsel tended to be

briefed in large matters, I suspect the real figure is much less.

Multiple applicants?

[69] Dealing first with the situation where there are multiple applicants, the question is

whether the Court’s jurisdiction is to order a total of $750,000 in the proceedings or

whether its jurisdiction is to order up to $750,000 per applicant, such that if there

is, say, 10 applicants, the Court could order a total of $7.5m? In my view, the

answer is clearly the latter. The subsection confers jurisdiction to order family

provision “so that any provision resulting from an order made by the Court shall

not exceed in amount or value the monetary limit”. The question is whether, on the

proper construction of that subsection, it should be read:

(a) Broadly as meaning “any provision for any applicant resulting from an

order” shall not exceed $750,000; or

34 The 1985 Report at p. 23. 35 See Grimsley v Paul [2021] QSC 78, where provision of $750,000 was made for a moderately needy

applicant disability support pensioner who was the stepchild of the deceased (where part of the estate

comprised assets passing from her biological parent to the deceased) out of an estate of $4.4m and where a

further $600,000 in superannuation was available to meet the needs of various third parties and beneficiaries.

18

(b) Narrowly as meaning “the total of any provision in a proceeding resulting

from an order… shall not exceed in total amount or value” $750,000.

[70] In my opinion, the broad construction is correct.

[71] First, as most of you would know, an application by one eligible applicant for

family provision stands as an application for all. Section 41(6) Succession Act

provides:

Where an application has been filed on behalf of any person it may be treated by the court

as, and, so far as regards the question of limitation, shall be deemed to be, an application on

behalf of all persons who might apply.

[72] Given this provision, it might be argued that when jurisdiction is conferred over

“actions and matters…for family provision”, all proceedings by all applicants

comprise a single action, and therefore it is the total provision in that action which

limits jurisdiction. However, in my view, the better view is that that argument is

wrong.

[73] The word “action”, as used variously in s. 68(1), has an ambiguous character. At

general law, the word “action” was part of an early taxonomy of different initating

processes. An action was the invocation of the jurisdiction of the Court by writ (in

contrast to a petition, motion or summons).36 Action is defined in s. 3 DCA as a

“civil proceeding commenced by plaint” (not apt to apply to family provision

applications at all). The reference to a plaint is obsolete following the reforms

leading to the UCPR. That definition should now be read as a proceeding

commenced by claim.37

[74] There is an argument that, based on the definition of action, the focus of the

assessment of jurisdiction is not on the cause of action advanced, but on the fact of

a proceeding commenced by claim. The difficulty with that argument, in my

respectful view, is that it sits awkwardly with authority, awkwardly with the way

the word is used in s. 68(1) and awkwardly with the content of s. 68(1) itself.

[75] Section 68(1)(a) is a convenient starting point. It does not use the word action at

all, but rather the phrase “personal actions”, which of itself contemplates any cause

of action with a money remedy,38 not a particular form of Court process. Further,

Merrin v Cairns Port Authority [2006] QCA 278 establishes, in the context of s.

68(1)(a), that the phrase “personal actions” should be read as referring to each

separate cause of action for money advanced in a single claim and statement of

claim,39 so that jurisdiction is conferred on the District Court to hear and determine

in the one proceeding any number of individual personal actions, so long as each

separate personal action (read cause of action) claims an amount less than the

statutory limit.

36 Halsbury’s Laws of Australia (LexisNexis online service) at [325-100]. 37 DCA, s. 149. 38 JA & JB Boyle Pty Ltd v Major Furnace Australia Pty Ltd (No 2) [2019] QDC 215. 39 Merrin v Cairns Port Authority [2006] QCA 278, adopting the approach to a different provision in Remote

Data Systems P/L v Hoover [2000] QCA 116.

19

[76] Further, reading “action” as meaning “a proceeding commenced by claim” does not

sit comfortably with the balance of s. 68(1). As we have seen, s. 68(1)(b) confers

jurisdiction variously by reference to the cause of action or legal right invoked, not

the form in which that right is invoked. Added to this is the ambiguity created by

the distinction seemingly drawn between actions and matters, presumably a

distinction harking back to some other historical procedural taxonomy, and perhaps

apt to pick up proceedings commenced by originating application (though nothing

in the DCA says so).

[77] In my opinion, the relevant subsection confers jurisdiction on the Court to hear and

determine one or more claims for provision in the one proceeding such that

provision resulting from an order on each claim is less than $750,000.

[78] Second, in my view, it is not open to doubt that each claim by an eligible applicant

for family provision is a separate claim. Section 41(1) confers power on the Court

to make an order in favour of “the spouse, child or dependent” individually, by

reference to whether proper provision was made for each such person.

[79] Third, the language of s. 41(6) Succession Act tends to support that conclusion.

The section does not in terms specify that there is in fact a single claim for relief

for all persons who might apply with a single order for provision. Rather, the

section has the effect of permitting the application by one person as being a distinct

claim for relief on behalf of all others who might apply. The provision is

procedural, not substantive. Its task is to make the initiation of such proceedings

simpler.

[80] Fourth, in choosing between a broad and narrow construction of jurisdiction-

conferring provisions, the broader construction always has a head start, as has been

discussed.

[81] Fifth, there is authority in this Court in support of my construction.40

Form of orders

[82] It is common to be presented with orders in family provision applications, made in

estates where there is a valid will, which are articulated by reference to how the

will in question ought to be “read and construed”. This form of order probably has

its genesis in the provisions in all other jurisdictions, which provide expressly that

an order for provision takes effect as if it were a codicil made immediately prior to

the testator’s death. In Queensland, on the other hand, the estate is held subject to

the order, though it takes effect as a codicil for duty purposes.41 However, there is

40 Danckert v Holmes [2021] QDC 6. In that case, three applicants were awarded between them provision of

$930,000 – differing provisions of $480,000, $275,000 and $175,000 were made. Cash QC DCJ considered

that s. 68(1)(b)(x) is to be read to refer to the amount provided to each applicant individually such that no

jurisdictional issue arose. 41 Authority for these propositions is stated in J de Groot & B Nickel, Family Provision in Australia

(LexisNexis Butterworths, 5th ed, 2016) at 8.11.

20

authority for the proposition that orders in Queensland can be validly made in that

well-known form, albeit the point was made without much discussion.42

[83] There can be a jurisdictional anomaly buried in the form of such orders, however.

They are not apt to identify with precision, on their face, the provision being made,

much less the amount or value of the provision. Even if the form of order is lawful

under s. 41 Succession Act, therefore, it can be ambiguous as to the matters which

go to jurisdiction. This might be a concern which only Judges alert to jurisdictional

limits might harbour, but a properly drawn order of the “read and construed as if”

type should be accompanied by evidence and submissions which demonstrate that

the provision resulting from that order is within jurisdiction.

The numbers

[84] Over the last decade, the figures kept by the Supreme and District Courts show that

between a quarter and a third of family provision applications are commenced in

the Supreme Court: see below.

[85] A review of published Supreme Court decisions since the beginning of 2010,

however, discloses only four orders made in contested proceedings where provision

was ordered in excess of $750,000.43 This is not to ignore that many claims for

large amounts are undoubtedly settled and that the review undertaken might not be

comprehensive. Given the analysis in this paper though, it seems likely that many

applications are being commenced in the Supreme Court which could be

commenced in the District Court.

SOME OTHER RELEVANT HEADS OF JURISDICTION

Sale or partition under the Property Law Act: s. 68(1)(b)(vi)

[86] Section 68(1)(b)(vi) provides:

(1) The District Court has jurisdiction to hear and determine—

…

(b) the following actions and matters—

…

(vi) to recover possession of any land, where the value of the land does not

exceed the monetary limit.

42 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 316.6. 43 Stewart v Stewart [2015] QSC 238: $850,000; Darveniza v Darveniza [2014] QSC 37: $3m; Pizzino v

Pizzino [2010] QSC 35: approximately $950,000; Currey v Gault [2010] QSC 27: $900,000 + a share of

residuary.

Court Type 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 Total

District Court 53 202 199 164 204 254 236 211 183 40 1,746

Supreme Court 29 50 83 77 75 90 82 83 88 24 681

Total 82 252 282 241 279 344 318 294 271 64 2,427

21

[87] I wish to do no more than remind you that the Court has this jurisdiction. It is

sometimes overlooked because the Property Law Act 1974 (Qld) itself does not

confer jurisdiction on the District Court.

Construction of written instruments: s. 68(1)(b)(xiii)

[88] Section 68(1)(b)(xiii) provides:

(1) The District Court has jurisdiction to hear and determine—

…

(b) the following actions and matters—

…

(xiii) for the determination of any question of construction arising under a

deed, will or other written instrument, and for a declaration of the rights

of the persons interested where the sum or the property in respect of

which the declaration is sought does not exceed in amount or value

the monetary limit…

[89] This provision is likely to be of particular use in estate matters where questions of

construction of a will arise. Two matters deserve mention.

[90] First, ordinarily the outcome of an application under this provision will be a

declaration as to the proper construction of the document and (as the provision

provides) a declaration as to the rights of the persons interested. It might be

debated whether the effect of s. 69(1) is to authorise the Court also to provide

consequential orders, such as orders for the payment of money or injunctive relief.

Sadly, I suspect each case must be considered on its particular facts for the purpose

of identifying whether the consequential relief is “for the purpose of exercising the

jurisdiction conferred” by the subsection. Keep in mind, however, that if the

consequence of the construction is that a person is entitled to recover money,

jurisdiction might arise under s. 68(1)(a). Other specific jurisdiction provisions

might also assist.

[91] Second, jurisdiction is conferred where the sum or the property in respect of which

the declaration is sought does not exceed $750,000. The application of this

limitation will depend on the scope of the relief sought. Applied to the context of

construction of a will, the conservative course would be to limit applications under

this provision to estates valued at $750,000. A less conservative course is open.

The focus of the provision is on the sum in respect of which the declaration is

sought. Accordingly, if the problematic provision relates to only part of the will,

and the declaration is articulated by reference to that provision, it would only be the

sum in respect of that part of the will which had to be less than $750,000. Bear in

mind also the potential impact of s. 68(4) in removing any doubt on this issue by

inviting the Court to decide the value question for jurisdictional purposes.

Relief from forfeiture under the Property Law Act: s. 70

[92] Section 70 DCA provides:

22

In relation to proceedings instituted or threatened to be instituted pursuant to section

68 (1) (b) (xi) , the District Court may exercise all or any of the powers and authorities of the

Supreme Court under the Property Law Act 1974 , sections 124 , 125 and 127 .

[93] Again, in this case, I wish to do no more than remind you that the Court has this

jurisdiction. It is also sometimes overlooked because the Property Law Act 1974

(Qld) itself does not confer jurisdiction on the District Court.

FORMAL REQUIREMENTS FOR INVOKING JURISDICTION

[94] There are two elements involved in properly invoking the jurisdiction of the

District Court. The first has been the primary focus so far of this paper: is the

cause of action advanced one which falls within the scope of the statutes conferring

jurisdiction on the Court? This is a matter of substance.

[95] The second element is a matter of form: what has to be done to demonstrate that

jurisdiction is properly engaged?

[96] There is authority on this in respect of money claims brought under s. 68(1)(a).

The law was stated authoritatively by Justice McPherson (with whom de Jersey and

Lee JJ agreed) in Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd

R 192 at 197:

The District Court is not, like the Supreme Court, a court of general jurisdiction but of

defined and limited jurisdiction. It is therefore an “inferior” court within the meaning of s.

86(3). See, on this distinction, W. v. W. (1982) 151 C.L.R. 491, 509. Its jurisdiction and

powers are therefore limited in accordance with both s. 86(2) and s. 86(3). As to the latter,

the only source of power that is relevant in this case is s. 67(2)(b) of the District Courts Act

1967–1989. It enables a District Court, in any proceedings in which jurisdiction is conferred

under Pt V of that Act, to grant relief by way of injunction in the proceedings.

Hence, in order to attract the power to enjoin under s. 67(2)(b), there must first be some

proceedings in which jurisdiction is conferred under that Part. For present purposes, that

means proceedings of a kind prescribed in s. 66(1)(a), of which the only relevant category is

‘‘personal actions, where the amount … sought to be recovered does not exceed the

monetary limit …’’. A claim for damages under statute may be regarded as satisfying that

description: see Ames v. Higdon (1893) 69 L.T.292; but only if its amount does not exceed

the monetary limit. By s. 66(2), the monetary limit is $200,000. However, in this case the

plaint in its original form claimed no particular amount at all. Without a claim for an amount

within the limit, the proceeding in this case was not demonstrably within the jurisdiction

conferred by s. 66(1)(a), and so not capable of attracting the power conferred by s. 67(2)(b)

to grant relief by way of injunction. See R. v. Cheshire County Court Judge and United

Society of Boilermakers; ex parte Malone [1921] 2 K.B. 694, and De Vries v. Smallridge

[1928] 1 K.B. 482. It would, in my view, follow that, in the state of the plaint as it then

stood, an injunction was not “a remedy of a kind” that a District Court was “able to grant

under the law of” this State, so as to attract the authority conferred by s. 86(2) and s. 86(3) of

the Trade Practices Act 1974 (Cth). On this point I would, with respect, adopt the

interpretation of those provisions in the reasoning of Sheppard J. in Brava Soft Furnishing

Pty Ltd v. T.R.W. Carr Pty Limited (FCA No. N.G. 1200/1988; Federal Court, Sydney, 4

September 1989, unreported).

[underlining added]

[97] The gravamen of this case is the underlined passage: that properly to invoke the

jurisdiction of the Court in money claims, the initiating process must include an

23

allegation or claim for a sum demonstrably within the monetary limit which defines

the scope of jurisdiction conferred by s. 68(1)(a).

[98] Startune is also authority for the proposition that jurisdiction can be established by

amendment nunc pro tunc at any time so as to show that the proceedings are within

jurisdiction. In Startune itself, the necessary amendment was made after the trial

and before the appeal, and this was confirmed as properly invoking jurisdiction for

the whole of the proceeding.44 Any oversight in this regard may, therefore, be

repaired later, though there is a strong argument that it must be done at some point.

A judgment of an inferior Court given outside jurisdiction is a nullity. In practice,

this means that a party which is the subject of such a judgment or order may ignore

it with impunity.45 A risky course no doubt, but one which a well-advised or

perhaps crazy-brave object of an order might take. If successful, not only would it

frustrate the party with the benefit of the order, but it will also embarrass its

advisers.

[99] The important question for trust and estate claims, relying on provisions other than

s. 68(1)(a) as a source of jurisdiction, is whether the principle in Startune applies to

those claims. There is little authority on the point that I could locate.46 It is

arguable that Startune applies only in respect of s. 68(1)(a). The form of s. 68(1)(a)

differs from the form of the provisions in s. 68(1)(b):

(a) Section 68(1)(a) confers jurisdiction by reference to the amount “sought to

be recovered”. It is therefore necessary to identify the amount sought to

invoke the jurisdiction. The way that amount is identified is by the relief

claimed by the plaintiff.

(b) The provisions of s. 68(1)(b) do not use that formula. Each has its own

articulation of how the monetary limit is defined and linked to the kind of

action identified, and most of those formulations are not in terms of the

value or amount sought. Section 68(1)(b)(x), dealing with family

provision, is a good example. It imposes the monetary limit by reference

to “provision resulting from the order”. It is arguable in this case that the

District Court, therefore, has jurisdiction to hear any family provision

application, but to award only up to $750,000 to the applicant when

ordering provision (i.e. at the end of the process). This seems to be the

approach taken in practice in most family provision originating

applications.

[100] This paper will not attempt to construe each provision in s. 68(1)(b) to identify any

formal requirements for properly invoking the jurisdiction of the Court. It seems

unnecessary for two reasons:

44 Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R 192 at 196.42 to 197.8. 45 United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323; Pelechowski v Registrar, Court of Appeal

(NSW) (1999) 198 CLR 435. 46 Danckert v Holmes [2021] QDC 6 applies Startune to family provision claims without analysing the issue.

24

(a) It would be wise to identify that the relevant integer of value is within the

monetary limit in the initiating process in every case, even if not strictly

necessary. It must be done at some stage; and

(b) Even if the formal invocation of the monetary limit aspect of the

jurisdictional limit is deficient, the oversight can always be remedied,

nunc pro tunc.

[101] This discussion is not complete without referring to the requirements of the

Uniform Civil Procedure Rules 1999 (Qld) (the UCPR). Rule 22 UCPR relevantly

provides:

22 Claim

(1) A claim must be in the approved form.

(2) A plaintiff must—

(a) state briefly in the claim the nature of the claim made or relief sought in

the proceeding; and

(b) attach a statement of claim to the claim; and

(c) for a claim filed in the District Court or a Magistrates Court, show the

court has jurisdiction to decide the claim.

[102] Rule 26 UCPR relevantly provides:

26 Content of application

(1) An application must be in the approved form.

…

(5) The applicant must specify in the application the orders or other relief sought in the

proceeding.

…

(8) An application filed in the District Court or a Magistrates Court, or material filed

with it, must show that the court has jurisdiction to decide the application.

[103] These provisions dictate that the initiating process must show the District Court has

jurisdiction. Failure to comply with this requirement does not mean that the Court

does not have jurisdiction. As I have said, exactly what is required to invoke

jurisdiction properly under s. 68 DCA will depend on the proper construction of

that statutory provision in each case. And the Rules themselves specifically

preserve the validity of proceedings which fail to comply with the Rules. Rule 371

provides that a failure to comply with the Rules is an irregularity rather than a

nullity.

[104] However, the Rules are there and should be complied with. It is also a salutary

process, when commencing in the District Court, to comply with the requirements

in Rules 22 and 26 to check that can show jurisdiction.

25

TRUST AND ESTATE JURISDICTION AND THE DISTRICT COURT

Limitations on the success of the reform project

[105] The purpose of the 1985 Report was to confer broad equitable and estate

jurisdiction on the District Court. The Commission did so against some resistance

from the profession. The Commission relevantly observed:47

Unlike their counterparts elsewhere the Queensland District Courts have, apart from the

provisions of ss. 68 and 69, no general equitable jurisdiction. We can see no justification for

maintaining such a state of affairs. Rules of equity have now lost much of their mystique

together with much of the difficulty that was once thought to surround them. Appointments

to the bench of the District Court must be made from barristers of at least five years’

standing: s. 9. In practice it is the rule for such appointees to have had considerably more

than five years’ experience, much of it in the Supreme Court, where equitable rules simply

form part of the general law applied to the determination of all cases…

One or perhaps two of the submissions received by the Law Reform Commission have

tended to doubt our assessment of the capacity of District Court Judges to exercise a

jurisdiction involving the application of equitable principles… We do not share this view. It

is not borne out by experience in England… There is no reason at all for supposing that

District Court Judges in Queensland are any less competent to determine such matters than

are their colleagues elsewhere.

[106] This ringing endorsement would hopefully still be generally applicable to Judges of

the Court now.

[107] However, in my respectful opinion, the conferral of equitable jurisdiction has only

been partially successful. The figures for family provision applications show

success. However, other trust and estate matters (apart from constructive trust type

family litigation) rarely appear in the Court. In my view, the reason, at least in

part, is the lack of clarity in the jurisdiction-conferring provisions. The proof is in

the contrast between family provision applications and other trust and estate

applications: family provision jurisdiction is clearly defined and easily applied, and

the profession makes use of it; trust and administration jurisdiction is not, and the

profession avoids it.

[108] The monetary limit is another barrier. Not only is $750,000 now a fairly modest

estate or trust fund, but there are also the additional issues of valuation, which can

be difficult, particularly early in an administration.

[109] The problems come not only from what the Commission did do, but also from what

it did not do. Most succession and trust matters are facilitated by the Succession

Act and the Trusts Act 1973 (Qld). Whatever might have been the view about the

radicalism of that Trusts Act in 1985, it is hardly radical legislation today.

[110] One might think it arguable that, to make good on the policy evident in the 1985

Report, a general trust and succession jurisdiction should be conferred on the

District Court, along with some or all of the powers conferred on the Supreme

47 The 1985 Report at pp. 13-14.

26

Court in the Succession and Trusts Acts, subject to a higher monetary limit

applying generally to the value of the estate or trust fund.

Hard civil jurisdictional limits at all?

[111] It is common to think that things must be the way they are. This applies with force

to the law, where experience, practice and jurisprudence can combine to create a

blindness to even obvious reform possibilities (accepting, of course, that reform is

not of itself a good thing. Only good reform is a good thing).

[112] There are other ways to approach the question of jurisdiction in intermediate trial

Courts which seem to work in other jurisdictions.48 At least two jurisdictions,

Victoria and South Australia, eschew hard jurisdictional limits in civil matters,

relying instead on the judgment of parties themselves as to where their interests lie.

[113] In Victoria, s. 37 County Court Act 1958 (Vic) gives that Court jurisdiction to hear

and determine all applications, claims, disputes and civil proceedings, regardless of

the type of relief sought or the subject matter, that are not by that or any other Act

excluded from its jurisdiction, which seems pretty comprehensive. Section 37(2)

excludes proceedings brought by application for a prerogative writ or an order in

the nature of a prerogative writ, or brought upon a judgment of the Supreme Court.

Section 49 provides that the Court, in relation to civil proceedings within its

jurisdiction, shall have the same power as the Supreme Court would have in such a

case. This has not stripped the Victorian Supreme Court of civil work: in 2016-

2017, there were 2,644 proceedings commenced in that Court.49 In 2019-2020,

there were 2,570 proceedings commenced in that Court.50

[114] The position in South Australia is similar in that, by s. 8 District Court Act 1991

(SA), the Court has the same civil jurisdiction in law and equity as the Supreme

Court at first instance, but excluding jurisdiction in probate or admiralty matters,

supervisory jurisdiction over inferior Courts or tribunals or with respect to

administrative acts, and jurisdiction to grant relief in the nature of a prerogative

writ.

[115] There is no realistic prospect of such far-reaching reform in Queensland any time

soon and I am far from certain it is the best solution for our State. For example, the

Victorian County Court has quite distinct divisions with Judges concentrating on

particular areas of expertise. It has Commercial, Common Law and Criminal

Divisions. The District Court of Queensland has not gone down that route, though

there is some de facto specialisation, particularly in Commercial. But it is one

alternative.

48 The material in this section draws on the following paper: Judge DJ McGill, The Jurisdiction of the District

Court of Queensland: Why is it so complicated? (A paper delivered to the Australian Lawyers Alliance –

Queensland State Conference, February 2018). 49 Annual Report of Supreme Court of Victoria, 2016-2017, at p. 24. By comparison, in 2015-2016, there were

5,773 civil matters commenced in the County Court of Victoria: Annual Report at p. 3. 50 Annual Report of Supreme Court of Victoria, 2019-2020, at p. 25.

27

Conclusion

[116] The question of jurisdiction in trusts and succession raises some fundamental

questions about how best to make use of the District Court of Queensland in the

administration of the justice in those areas and about how best to define

jurisdictional limits. Reform is possible, but it would require a process of research

and consultation to reach fruition.