[1985] VR 241
CLEMENTS v SEBO
SUPREME COURT OF VICTORIA
BEACH J
13, 28 August 1984
[1985] VR 241
Administration and probate — Probate duty — Hardship Relief Board — Application for relief from duty — Power of Board to entertain application
made after duty has been paid — Probate Duty Act 1962 (No. 6890), s38B.
.
S38B(2) of the Probate Duty Act 1962 establishes a Hardship Relief Board and
confers upon it jurisdiction to hear and determine applications from persons
who claim that payment of probate duty "would entail hardship" to a
beneficiary of an estate. The chairman of the Board is the Commissioner of
Probate Duty.
The applicant was a beneficiary under a will by which it was provided that the
applicant should be responsible for payment of probate duty. The applicant's
solicitor wrote to the Commissioner seeking advice on the appropriate method
of applying for relief from payment. The Commissioner advised that the
application should be lodged after the issue of a probate duty assessment.
Before the assessment issued the duty was paid in order to avoid interest
being charged. Shortly after the assessment was issued the applicant applied
to the Board for relief. The Commissioner, without drawing the application to
the attention of the Board, advised that the Board did not have jurisdiction
to entertain the application because it had not been lodged before payment of
the duty. At the insistence of the applicant the matter was referred to the
Board which held that it lacked jurisdiction. The Board did not invite the
applicant to make submissions to it. The Commissioner sat as a member of the
Board.
The applicant obtained an order for review on the grounds that the Board was
wrong in law in holding that it lacked jurisdiction, that the applicant had
been denied natural justice by the Board and that the Commissioner was biased
by reason of prejudgment.
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[1985] VR 241
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