Case: Cooper v Commissioner of Taxation [2004] FCA 1063 ; (2004) 139 FCR 205
Outcome: followed
(Hong Kong) Ltd v William Edward Meinhardt (Deceased) &amp; Ors [2006] FCA 1106 (22 August 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here: &nbsp; AustLII &gt;&gt; Databases &gt;&gt; Federal Court of Australia &gt;&gt; 2006 &gt;&gt; [2006] FCA 1106 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Meinhardt (Hong Kong) Ltd v William Edward Meinhardt (Deceased) &amp; Ors [2006] FCA 1106 (22 August 2006) Last Updated: 23 August 2006 FEDERAL COURT OF AUSTRALIA Meinhardt (Hong Kong) Ltd v William Edward Meinhardt (Deceased) &amp; Ors [2006] FCA 1106 BANKRUPTCY creditor's petition for administration of estate of deceased person pending applications in State court for probate and letters of administration whether bar to creditor's petition - whether leave of the court is required "proceedings for the administration of a deceased person's estate". PRACTICE AND PROCEDURE precedent whether previous decision of single Judge should be followed whether previous decision 'plainly wrong'. Bankruptcy Act 1966 (Cth): s 244(13) Rules of the Supreme Court of Victoria : Pt 54 Cooper v Commissioner of Taxation [2004] FCA 1063 ; (2004) 139 FCR 205 followed Gonzalez v Maria de Luz Marmentini (unreported, Federal Court of Australia, Emmett J, 7 July 1998) followed McLean v Burns Philp Trustee Co Pty Ltd (1985 ) 2 NSWLR 623 applied Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586 followed SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 followed MEINHARDT (HONG KONG) LTD v WILLIAM EDWARD MEINHARDT (DECEASED) &amp; ORS VID838 OF 2006 JESSUP J 22 AUGUST 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID838 OF 2006 BETWEEN: MEINHARDT (HONG KONG) LTDApplicant AND: WILLIAM LINDSAY MEINHARDT (DECEASED)First RespondentWILLIAM EDWARD MEINHARDTSecond RespondentVICTORIA BARBARA TREYVAUDThird Respondent JUDGE : JESSUP J DATE: 22 AUGUST 2006 PLACE: MELBOURNE RULING William Lindsay Meinhardt died on 23 November 2003 leaving a will which named Timonthy Jonathan Browne and Roderick Charles McKenzie as executors. The residuary beneficiaries were William Meinhardt's three children, Victoria Treyvaud, Sally Veall, and William Edward Meinhardt. No application for probate had been made when, on 23 November 2005, William Meinhardt Jr commenced proceedings in the Supreme Court of Victoria against the executors under s 15 of the Administration and Probate Act 1958 (Vic) in which they sought orders that the executors show cause why they should not renounce probate of the will and why administration of the will should not be granted to State Trustees Ltd. On 22 December 2005 the executors commenced their own proceeding in the Supreme Court in which they applied for probate of the will. On 16 March 2006 the Supreme Court ordered that the two proceedings be heard together. Mr Bigmore's second submission was that Gonzalez was plainly wrong. He accepted that I should follow the judgment of another single judge of this Court unless I was persuaded that it was plainly wrong: see Cooper v Commissioner of Taxation [2004] FCA 1063 ; (2004) 139 FCR 205, [46]; Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586, [38]. When speaking of a like test in the context of a later Full Court being asked to depart from the judgment of an earlier Full Court, in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214, [148], Weinberg J said (with the assent of Allsop J): "The word "plainly" does more than simply add emphasis. It suggests that the error must be manifest or, if it does not rise to that level, at least capable of being easily demonstrated. In a sense, the error must be so clear as to enable a later court to say that the point is not reasonably arguable."