AA As Executor of the Estate of BB v Xx [No 2] - [2024] WASC 39

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   AA AS EXECUTOR OF THE ESTATE OF BB -v- XX [No 2] [2024] WASC 39
CORAM:   LUNDBERG J
HEARD:   23 JUNE 2023 WITH FURTHER SUBMISSIONS FILED ON 6 AND 10 JULY 2023 AND 20 MARCH 2024
DELIVERED          :   23 FEBRUARY 2024
PUBLISHED           :   22 MARCH 2024
FILE NO/S:   CIV 1917 of 2020
BETWEEN:   AA AS EXECUTOR OF THE ESTATE OF BB
First Plaintiff
AA AS EXECUTOR OF THE WILL OF CC
Second Plaintiff
DD AS TRUSTEE OF THE BB TESTAMENTARY TRUST
Third Plaintiff
EE AS TRUSTEE FOR FF INVESTMENT TRUST
Fourth Plaintiff
AND
XX
First Defendant
YY
Second Defendant

Catchwords:

Executors and trustees - Applications by executors and trustees to have first defendant in effect disqualified from benefiting from the estates and trusts - Circumstance of parricide - Application of the common law forfeiture rule

Trustees - Applications for judicial advice pursuant to s 92 of the Trustees Act 1962 (WA) and s 45 of the Administration Act 1903 (WA) - Power of the trustee to remove the first defendant as beneficiary of trust - Authority of trustee to determine that whole of capital be held on trust for second defendant

Practice and procedure - Open justice principle - Exceptions - Order sought for final hearing to be in closed court - Orders already made for suppression and restricting access to information on the court file - Turns on own facts

Legislation:

Administration Act 1903 (WA), s 45
Trustees Act 1962 (WA), s 92

Result:

Orders to be made in terms of Originating Summons dated 3 September 2020

Category: B

Representation:

Counsel:

First Plaintiff	:	R J Nash
Second Plaintiff	:	R J Nash
Third Plaintiff	:	R J Nash
Fourth Plaintiff	:	R J Nash
First Defendant	:	No appearance
Second Defendant	:	B W Ashdown

Solicitors:

First Plaintiff	:	Haynes Leeuwin
Second Plaintiff	:	Haynes Leeuwin
Third Plaintiff	:	Haynes Leeuwin
Fourth Plaintiff	:	Haynes Leeuwin
First Defendant	:	No appearance
Second Defendant	:	Croftbridge

Case(s) referred to in decision(s):

AA as executor of the estate of BB v XX [2021] WASC 455
Beresford v Royal Insurance Co Ltd [1938] AC 586
Blatchford v Laine [2018] WASC 207
Challen v Challen [2020] EWHC 1330 (Ch)
Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147
Curwen v Vanbreck Pty Ltd [2008] VSC 338
David Syme & Co Ltd v General Motors-Holden's Ltd [1984] 2 NSWLR 294
Dunbar v Plant (1998) Ch 412
Edwards v State Trustees Ltd [2016] VSCA 28; (2016) 54 VR 1
EEU20 v Meat Industry Employees' Superannuation Fund Pty Ltd [2020] FCA 1359
Helton v Allen (1940) 63 CLR 691
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
In re Atkinson (dec) [1971] VicRp 73; [1971] VR 612
In the Estate of Crippen Deceased [1911] P 108
In the Estate of Hall Deceased [1914] P 1
Karger v Paull [1984] VR 161
Kearns v Hill (1990) 21 NSWLR 107
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Mandie v Memart Nominees Pty Ltd [2020] VSCA 281; (2020) 62 VR 528
Mercanti v Mercanti [2016] WASCA 206; (2016) 340 ALR 290
Pacella v Sherborne [2009] WASC 58
Permanent Trustee v Gillett (2004) NSWSC 278; (2004) 145 A Crim R 220
Public Trustee (WA) v Mack [2017] WASC 325
Re Peacock; Midland Bank Executor and Trustee Co v Peacock [1957] Ch 310
Re Plaister; Perpetual Trustee Co Ltd v Crawshaw (1934) 34 SR (NSW) 547
Re Settree Estates; Robinson v Settree [2018] NSWSC 1413; (2018) 98 NSWLR 910
Savage as Executor of the Will of Edward Erle Savage (Deceased) [2023] QSC 280
TK v Australian Red Cross Society (1989) 1 WAR 335
Troja v Troja (1994) 33 NSWLR 269
Tsaknis v Lilburne [2010] WASC 152
Wood (As CoExecutor and Trustee of the Will of the Deceased) v Wood [No 4] [2014] WASC 393
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 22] [2023] WASC 285
XY v WA Country Health Service [No 2] [2016] WASC 245

Table of Contents

A. Introduction and summary

B. Relief sought

C. Factual background

The family

Killing of family members

The father's estate and the mother's estate

The BB Testamentary Trust

The FF Investment Trust

The first defendant does not oppose the relief

D. Relevant legislation

E. First issue - the BB Testamentary Trust (forfeiture rule)

Overview

Forfeiture rule

Disposition

F. Second issue - CC's Estate (forfeiture rule)

Overview

Disposition

G. Third issue - the FF Investment Trust (forfeiture rule)

Overview

Disposition

H. Fourth issue - the FF Investment Trust (removal of beneficiary)

Overview

Relevant principles

Consideration

Disposition

I. Fifth issue - the FF Investment Trust (capital declaration)

Overview

Disposition

J. Suppression and restriction orders

Background

Reasoning

K. Conclusion and orders

ATTACHMENT A Diagram of Parties, Entities and Trusts

ATTACHMENT B Orders made on 23 February 2023

LUNDBERG J:

A. Introduction and summary

This proceeding arises from a case of parricide - the deliberate killing of a person's father, mother or close relative.
The first defendant (who I will refer to as XX, for reasons which I will explain below) attacked several immediate family members, killing the family's father (BB), mother (CC), and one of their siblings (GG). The sole survivor of the attack, another sibling, who sustained horrendous injuries, was the second defendant (YY). The attack occurred outside of this country.
The first defendant was subsequently found guilty by a national court of three counts of murder, one count of attempted murder, and one count of obstruction of justice. The first defendant is presently serving a life sentence. All avenues of appeal have now been exhausted.
At the heart of the present proceeding is the forfeiture rule - the long standing common law principle, said to be based upon public policy, that no court ought assist a criminal to derive a benefit from his or her crime. The rule has application in the present matter by reason that the first defendant, who perpetrated these murders, stands to otherwise inherit money from the combined estates of BB and CC, and through certain trusts which were established by BB.
The first and second plaintiff to this proceeding is the executor of the estate of the father and mother (who I will refer to as the Executor or AA). The Executor is the first plaintiff, in his capacity as executor of the father's estate (which I will refer to as the Estate of BB), and he is the second plaintiff in his capacity as the executor and trustee of the mother's estate (the Estate of CC).
The third and fourth plaintiff is the corporate trustee of two trusts. The two trusts are respectively the BB Testamentary Trust (which was established under the will of BB) and the FF Investment Trust (which was established prior to BB's death). The trustee is referred to in these reasons as DD and EE, in its two capacities.
The relationship between the parties to this proceeding, and the other relevant persons, entities and trusts, is summarised in the diagram in Attachment A to these reasons.
The Executor and corporate trustee commenced the proceeding by originating summons filed on 3 September 2020 (Originating Summons), seeking declarations (alternatively directions) from the court as to the potential distributions from the estate and trust assets. The relief is sought pursuant to s 92 of the Trustees Act 1962 (WA) (Trustees Act) and section 45 of the Administration Act 1903 (WA) (Administration Act).
The relief sought by the plaintiffs in the proceedings is, in effect, adverse to the interests of the first defendant. The first defendant is a potential beneficiary of the Estate of BB and the Estate of CC, and a potential object of an exercise of a discretion by the trustee of the trusts to which I have referred. The relief sought by the collective plaintiffs in this proceeding would have the effect of disqualifying the first defendant from benefiting from the estates or the trusts in question, and concomitantly, would benefit the interests of the second defendant as an available beneficiary or object of the estates and trusts.
The circumstance which has given rise to this proceeding, and the subsequent adverse impacts upon the survivor of the attack, the second defendant, has led this court, upon the application of the second defendant, to make orders to preserve the identity and location of, and other distinguishing personal data concerning, the second defendant. In particular, orders have been made to suppress the court's previous decision in the matter (delivered by his Honour Kenneth Martin J),[1] to restrict access to documents filed with the court, and to allow for the publication of these reasons in an anonymised format. I will address these matters in due course in these reasons.
[1] AA as executor of the estate of BB v XX [2021] WASC 455.
Given the suppression and other orders which have been made, I will refer to the factual background in general terms, although with the necessary detail to ensure these reasons and the principles which I propose to apply can be understood by the reader in a meaningful way. Naturally, the view the court has reached that a high degree of anonymity is called for means that the family members referred to in these reasons are identified in rather an impersonal manner. That is a necessary function of the anonymity required, and it goes without saying, I would hope, that the impersonal drafting of these reasons is done without any intended disrespect to those involved and those who have suffered as a result of the monstrous incident which lies at the core of these proceedings.
The hearing of the Originating Summons was conducted on 24 June 2023. The hearing was held in open court. The first defendant, who had been served with the proceedings, did not appear at the hearing. The first defendant confirmed by a sworn affidavit that the relief sought by the plaintiffs was not opposed.
For the reasons explained below, I have concluded that the relief sought by the plaintiffs should be granted and that the confidentiality regime should continue.

B. Relief sought

By the Originating Summons, the plaintiffs seek the orders summarised below.
A declaration is sought by the first, second and third plaintiffs pursuant to s 92 of the Trustees Act, alternatively pursuant to s 45 of the Administration Act, that the first defendant, having been convicted of murdering the family members identified above, has forfeited any right, title, or interest to participate as a beneficiary in the Australian estates of BB or CC, or in the testamentary trust created by BB's last will. This relief is sought by paragraphs 1 and 2 of the Originating Summons. I have addressed this relief under the headings 'first issue' and 'second issue' at [31] and [49] below.
A declaration is sought by the fourth plaintiff pursuant to s 92 of the Trustees Act that the first defendant has not, by virtue of having been convicted of murdering the family members identified above, forfeited any entitlement as a beneficiary under the FF Investment Trust. This relief is sought by paragraph 3(a) of the Originating Summons. I have addressed this relief under the hearing 'third issue' at [54] below.
On the assumed basis that the preceding declaration is granted, the fourth plaintiff seeks a declaration pursuant to s 92 of the Trustees Act that, as the trustee of the FF Investment Trust, it has the power to remove the first defendant as a beneficiary of that trust, and the trustee would not be acting unreasonably or without justification by exercising that power. This relief is sought by paragraphs 3(b) and 3(c) of the Originating Summons. I have addressed this relief under the hearing 'fourth issue' at [61] below.
Finally, and in the alternative to the preceding relief, the fourth plaintiff seeks a declaration pursuant to s 92 of the Trustees Act that, as the trustee of the FF Investment Trust, it has the authority to make a determination declaring that the whole of the FF Investment Trust capital is held for the second defendant (with the consequence that the whole of the trust capital will vest in the second defendant on termination of the trust), and the trustee of the FF Investment Trust would not be acting unreasonably or without justification by exercising that authority. This relief is sought by paragraphs 4(a) and 4(b) of the Originating Summons. I have addressed this relief under the hearing 'fifth issue' at [94] below.
The plaintiffs filed detailed written submissions in support of the relief sought, addressing the forfeiture rule, the construction task in relation to the trust deed in question, and the exercise of a trustee's power to exclude a beneficiary. The plaintiffs' submissions are largely set out in the written submissions dated 30 May 2023, but I requested and received supplementary submissions from the plaintiffs and the second defendant following the hearing.[2] A summary of the applicable principles to which I will have regard in addressing the issues raised by the summons are set out later in these reasons.
[2] Plaintiffs' further submissions dated 6 July 2023; and Second Defendant's Outline dated 10 July 2023.
Before addressing each of the issues raised by the Originating Summons, I will set out the factual background and the applicable legislative provisions.

C. Factual background

The primary evidence relied upon by the plaintiffs was contained in several affidavits sworn by the Executor. I refer to the following affidavits:
(a)the affidavit sworn by the executor on 27 August 2020 (First Executor Affidavit);
(b)the supplementary affidavit sworn by the executor on 6 October 2022 (Second Executor Affidavit);
(c)the further supplementary affidavit sworn by the executor on 24 May 2023 (Third Executor Affidavit); and
(d)the fourth affidavit sworn by the executor on 2 June 2023 (Fourth Executor Affidavit).
The plaintiffs also relied upon the affidavit of a solicitor for the plaintiffs sworn 6 October 2022 (Solicitor's Affidavit). Finally, the plaintiff also read part of the second defendant's affidavit sworn 29 September 2021 (Second Defendant's Affidavit), namely [6] thereof.

Having regard to the foregoing affidavit material, which was unchallenged, I am able to make the following factual findings in this matter:

The family

1.The deceased father and mother had three children, namely GG, the first defendant, and the second defendant.
2.The second defendant is the youngest in the family.

Killing of family members

3.As a result of the attack upon them by the first defendant, the father, the mother, and GG all died in their home, which was situated outside Australia. On the same day, the second defendant suffered critical injuries and the first defendant survived with minor injuries.
4.A court in the country in which the events occurred found the first defendant guilty of the murder of the father, the mother, and GG. The first defendant was also found guilty of the attempted murder of the second defendant,[3] and an offence of obstruction of justice.
[3] First Executor Affidavit, [12] and Attachments 6 and 7.
5.The first defendant has exhausted all avenues of appeal against the convictions.[4] It must therefore be taken as a fact that the first defendant was responsible for the intentional and unlawful killing of BB, CC and GG, and the attempted killing of YY.
[4] First Executor Affidavit, [14] - [15].
6.Distributions in excess of $1.0 million were made from the FF Investment Trust to, or on behalf of, the first defendant, substantially for the purpose of funding the first defendant's legal fees in respect of the criminal charges brought against the first defendant.[5]
[5] Third Executor Affidavit, [8] and ts 40.

The father's estate and the mother's estate

7.The father and mother left individual wills in relation to their Australian assets, both of which are dated 5 December 2007 (BB's Will and CC's Will).[6] The Executor of the father's estate was appointed pursuant to a grant of probate made by this Court soon after their deaths.[7] The same Executor was also appointed as executor to the mother's estate pursuant to a grant of probate made by this Court.[8] Both grants were limited to real and personal property situated in Australia.
[6] First Executor Affidavit, [16] - [21] and Attachment 1, and [29] - [35] and Attachment 2.
[7] First Executor Affidavit, [22] and Attachment a.
[8] First Executor Affidavit, [30] and Attachment 2.
8.Clause 4 of BB's Will directs that the residue of BB's Estate (after payment of all just debts and funeral expenses) be held in a discretionary testamentary trust for the benefit of his wife and children. That is the BB Testamentary Trust. Clause 4(d) of BB's Will specifically provides that upon his wife's death, or when his youngest child reaches a specified age (whichever is the last to occur), the balance of the fund is to be paid to such of his children as survive him.
9.Clause 4(b) of CC's Will provides that should her husband predecease her, she gives her estate to her children equally to be held on trust by her trustee until her children attain a specified age.
10.By virtue of s 120 of the Property Law Act 1969 (WA), CC's Estate devolves as if she had survived both her husband and GG.

The BB Testamentary Trust

11.The Executor completed his executorial duties in respect of BB's Estate and became the trustee of the BB Testamentary Trust created by cl 4 of BB's Will.
12.The Executor resigned as trustee of the BB Testamentary Trust on 19 August 2019, and DD (being a corporate entity of which the Executor is a director and BB was a director until his death)[9] was appointed as the testamentary trustee.
[9] This factual point was clarified by counsel during the course of the hearing: ts 40.
13.The first defendant, as one of the children of BB and CC, is a beneficiary under the terms of the BB Testamentary Trust.

The FF Investment Trust

14.The FF Investment Trust is a discretionary trust created by deed dated 2 March 2012 (FF Trust Deed),[10] the beneficiaries of which included (immediately prior to the deaths of BB, CC, and GG):
[10] First Executor Affidavit, [40] - [50] and Attachment 18.
(a)the children of BB and CC (referred to as Specified Beneficiaries);[11] and
[11] Item 6 of the Trust Details Schedule to the Trust Deed and the definition of 'Specified Beneficiaries'.
(b)BB and CC themselves (referred to as General Beneficiaries).[12]
[12] Item 7 of the Trust Details Schedule to the Trust Deed and the definition of 'General Beneficiaries'.

15.The definition of beneficiaries also extends to include, inter alia, persons who are aunts, uncles or cousins of the Specified Beneficiaries.
16.The vesting date of the FF Investment Trust is 2 March 2092. The governing law of the trust is the law of the State of Western Australia. EE (which is the same corporate entity as DD) is the trustee of the FF Investment Trust, having been appointed on 21 September 2014.
17.The defendants, as the surviving children of BB and CC, are accordingly beneficiaries of the FF Investment Trust.
18.Until his death, BB was the Appointor of the FF Investment Trust. The Executor was appointed as the Appointor of the FF Investment Trust by operation of the father's Will.

The first defendant does not oppose the relief

19.The first defendant has been served with the originating summons and supporting affidavits, and has deposed that he does not oppose the relief sought by the plaintiffs and will abide the order of this court.[13]

[13] Solicitor's Affidavit, Attachment 2.

D. Relevant legislation

As noted, the plaintiffs seek relief pursuant to two statutory provisions which empower the court to give directions to a trustee and make orders in relation to questions arising in respect of any will or administration.
Section 92 of the Trustees Act provides as follows:

Directions, trustee may ask Court for
(1)Any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee.
(2)Every application made under this section shall be served upon, and the hearing thereof may be attended by, all persons interested in the application or such of them as the Court thinks expedient.

There is a jurisdictional bar under this provision, but it is a low one. The bar is that the applicant must point to a question respecting the management or administration of trust property or a question respecting the interpretation of a trust instrument. The jurisdiction is enlivened when the question raised for directions is whether the trustee is justified in prosecuting or defending a particular claim. The court has a discretion as to whether to provide a direction under this provision.[14]
[14] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 [58], [162] (Gummow ACJ, Kirby, Hayne and Heydon JJ); Wood (As CoExecutor and Trustee of the Will of the Deceased) v Wood [No 4] [2014] WASC 393 [4] (Kenneth Martin J); Blatchford v Laine [2018] WASC 207 [57] (Vaughan J).
A trustee, including an executor of a deceased estate, if in doubt about the course of action to be adopted in the course of administration of the estate or the trust, may apply to the court for its opinion, direction or advice pursuant to s 92. This position is long established.[15]
[15] Tsaknis v Lilburne [2010] WASC 152 [38] (E M Heenan J); In re Atkinson (dec) [1971] VicRp 73; [1971] VR 612, 615.
Section 45 of the Administration Act provides as follows:
Court may settle all questions arising in administration
(1)The Court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real and personal estate which an executor or administrator or Public Trustee may have in hand, or as to the residue of the estate, as the circumstances of the case may require.
(2)Such order shall bind all persons whether sui juris or not.
(3)No final order for distribution shall be made except upon notice to all the parties interested, or as the Court may direct.
The provision is expressed in broad and general terms. The legislation refers to 'any question arising in respect of any will or administration'. It has been observed that this phrase is entirely open-ended and clearly shows the legislature was intending to provide the court with the widest possible discretion to deal with problems which arise in relation to the estate.[16]
[16] Pacella v Sherborne [2009] WASC 58 [12] (Master Sanderson).
Section 45 has previously been relied upon by an administrator to obtain directions from this court as to whether the forfeiture rule applies. In Public Trustee (WA) v Mack,[17] Master Sanderson gave directions to the administrator of an estate as to the distribution of the estate in circumstances in which one of the beneficiaries had been convicted of killing the person whose estate was to be administered (Mrs Ah Bee Mack, the killer's mother). In effect, the court ordered that the beneficiary who had committed the murder (Brent Mack) be disentitled, leaving the estate to the other son (Adrian Mack). The Learned Master ordered as follows:
Pursuant to s 45 Administration Act 1903 and Order 58 of the Rules of the Supreme Court, the Court directs the plaintiff, on the final distribution of the intestate estate of the late Ah Bee Mack, to distribute the whole of the estate, after payment of all estate debts, duties, taxes, funeral, testamentary and administration expenses, to the administrator of the estate of the late Adrian Ernest Mack, namely the first defendant.
[17] Public Trustee (WA) v Mack [2017] WASC 325 (Master Sanderson).

E. First issue - the BB Testamentary Trust (forfeiture rule)

Overview

The first issue addresses the relief sought by the first and third plaintiffs in paragraph 1 of the Originating Summons. It concerns the application of the forfeiture rule to BB's Estate and the BB Testamentary Trust. Pursuant to the terms of BB's Will, the first defendant is a discretionary beneficiary in relation to the BB Testamentary Trust, established under BB's Will. The only other surviving beneficiary is the second defendant.
It is submitted by these plaintiffs that, as a direct result of the murder of BB, the first defendant derived the following interests:
(a)First, the first defendant became one of a class of two objects of the BB Testamentary Trust. That is, the first defendant became one of two objects of the trustee's discretionary power to appoint the income and capital of the trust until such time as the second defendant reached a specified age. Accordingly, the plaintiffs submit that the first defendant derived a legal interest in the form of a chose in action, being the right to be considered as a potential beneficiary by the trustee and the right to enforce the due administration of the trust.
(b)Second, the first defendant became a contingent beneficiary of half of whatever capital and income remains in the fund of the BB Testamentary Trust when the second defendant turns the specified age, which has now transpired.
The first and third plaintiffs seek a declaration pursuant to either s 92 of the Trustees Act or s 45 of the Administration Act that the first defendant has forfeited any right, title or interest to participate as a beneficiary in BB's Estate or in the BB Testamentary Trust. To resolve that question, it is first necessary to outline the forfeiture rule, upon which the plaintiffs rely.

Forfeiture rule

The forfeiture rule is a rule of public policy, namely the abhorrence of the notion that one may profit from killing another. The rule itself is not always expressed in identical language. For present purposes, the principle can be described as follows - if a person is criminally responsible for the death of another, and that death is a material fact in the vesting of property in favour of that person, the interest in that property is forfeited.[18]
[18] Helton v Allen (1940) 63 CLR 691, 709 (Dixon, Evatt and McTiernan JJ).
The principle has been applied to cases of murder,[19] manslaughter[20] and suicide pacts.[21] The rule does not apply where a person takes the life of another but is found not guilty by reason of mental illness.[22]
[19] In the Estate of Crippen Deceased [1911] P 108, 112 (Sir Samuel Evans P).
[20] In the Estate of Hall Deceased [1914] P 1.
[21] Dunbar v Plant (1998) Ch 412 (English Court of Appeal); Beresford v Royal Insurance Co Ltd [1938] AC 586 (House of Lords).
[22] Re Plaister; Perpetual Trustee Co Ltd v Crawshaw (1934) 34 SR (NSW) 547.
The precise boundaries of the principle need not be explored in the present matter, but it is instructive to review several of the leading authorities which have considered, and developed, the principle.
In Cleaver v Mutual Reserve Fund Life Association,[23] which was decided in the late 19^th century, the executors of the estate of the deceased raised an objection to the deceased's wife maintaining an action on a trust created by an insurance policy in her favour. The wife had been convicted of the murder of her husband. The executors' asserted that it was against public policy to allow a criminal to claim any benefit by virtue of their crime. Not all the judges expressed themselves or the principle in the same terms. Fry LJ's judgment is the most often cited. His Lordship held:
The principle of public policy invoked is in my opinion rightly asserted. It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person. If no action can arise from fraud it seems impossible to suppose that it can arise from felony or misdemeanour...
This principle of public policy, like all such principles, must be applied to all cases to which it can be applied without reference to the particular character of the right asserted or the form of its assertion.
[23] Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147.
Some years later, as the then President of the Probate, Divorce and Admiralty Division of the English High Court, Sir Samuel Evans decided the notorious case involving Dr H H Crippen who had murdered his wife: In the Estate of Crippen Deceased.[24] Following his conviction but before his death sentence was carried out, Dr Crippen made a will naming Ms Le Neve as the sole executrix and beneficiary of his estate. Sir Samuel Evans passed over Ms Le Neve on a motion for the grant of an administration to Mrs Crippen's intestate estate. The President held:[25]
It is clear that the law is, that no person can obtain, or enforce, any rights resulting to him from his own crime; neither can his representative, claiming under him, obtain or enforce any such rights.
[24] In the Estate of Crippen Deceased.
[25] In the Estate of Crippen Deceased (112).
In 1938, in Beresford v Royal Insurance Co Ltd, the House of Lords applied the principle to a circumstance of suicide. The forfeiture rule was relied upon so as to excuse a life insurance company from having to pay on a policy in circumstances where the death was caused by suicide. Lord Atkin explained the decision as follows:[26]
On ordinary principles of insurance law an assured cannot by his own deliberate act cause the event upon which the insurance money is payable. The insurers have not agreed to pay on that happening. The fire assured cannot recover if he intentionally burns down his house, nor the marine assured if he scuttles his ship nor the life assured if he deliberately ends his own life. This is not the result of public policy, but of the correct construction of the policy.
[26] Beresford v Royal Insurance Co Ltd (595).
In Australia, the starting point for a consideration of the forfeiture rule is typically the decision of the High Court in Helton v Allen, decided in 1940. In that case, a testatrix died of poisoning. The person who was appointed executor and constituted a residuary devisee and legatee through the deceased's last will was tried for murder. He was acquitted, but civil proceedings ensued for the purpose of demonstrating that he did unlawfully kill the testatrix and to exclude him from occupying the office of executor or taking any benefits under the will. The jury found the defendant had unlawfully killed the testatrix, on the civil standard. The High Court ultimately concluded there had been a mistrial arising from the judge's directions to the jury.
The plurality in that case (Dixon, Evatt and McTiernan JJ) observed that:
… Helton relies upon his acquittal of the charge of murder in the Criminal court as an answer to the application of the rule excluding a homicide from any benefit under the will or intestacy of the person who died at his hands. The rule is one of recent development. Its earliest appearance in any form may be said to be Fauntleroy's Case, The Amicable Insurance Society v Bolland (1830) 4 Bligh (NS) 194. In the Prince of Wales, etc, Association Co v Palmer (1858) 25 Beav 605, it appeared that Palmer, the poisoner, had effected insurances upon his victims with the intention of defrauding, and the rule disqualifying a homicide from claiming under the will or intestacy of his victim, or by reason of his death, was scarcely in point. Its first clear formulation was left to Cleaver v Mutual Life Association [1892] 1 QB 147, which arose out of the conviction of Mrs Maybrick. It is placed upon a principle of public policy, and it was said that no system of jurisprudence could with reason include amongst the rights which it enforces rights directly resulting to a person asserting them from the crime of that person (per Fry LJ [1892] 1 QB 147 at pp 156). In In the Estate of Hall [1914] P 1 the doctrine was finally established and held to include not only murder but manslaughter. There Hamilton LJ, said that the principle could only be expressed in the wide form: 'It is that a man should not slay his benefactor and thereby take his bounty; and I cannot understand why the distinction should be drawn between the rule of public policy where the criminality consists in murder and the rule where the criminality consists in manslaughter.' [1914] P 1 at p 7. See, further, In re Sigsworth [1935] Ch 89; and Beresford v Royal Insurance Co. Ltd. [1938] AC 586.
There have been a number of more recent decisions in Australia on the subject, including the decisions of intermediate appellate courts in New South Wales[27] and Victoria,[28] the decision of Austin J in Permanent Trustee v Gillett,[29] the decision of Lindsay J in Re Settree Estates; Robinson v Settree,[30] and the recent decision of Burns J in Savage as Executor of the Will of Edward Erle Savage (Deceased).[31] In the United Kingdom, the forfeiture rule has been the subject of recent analysis by the High Court in Challen v Challen.[32]
[27] Troja v Troja (1994) 33 NSWLR 269.
[28] Edwards v State Trustees Ltd [2016] VSCA 28; (2016) 54 VR 1.
[29] Permanent Trustee v Gillett (2004) NSWSC 278; (2004) 145 A Crim R 220.
[30] Re Settree Estates; Robinson v Settree [2018] NSWSC 1413; (2018) 98 NSWLR 910.
[31] Savage as Executor of the Will of Edward Erle Savage (Deceased) [2023] QSC 280.
[32] Challen v Challen [2020] EWHC 1330 (Ch).
The judicial analysis in New South Wales and the United Kingdom must, of course, make due allowance for the presence in those jurisdictions of legislative regimes which have been enacted. There is no applicable legislative instrument in this State.
On a review of the foregoing authorities, I take the orthodox position to be that where a person who would otherwise obtain a benefit by the death of another, has brought about that other's death by violent means, he or she shall not be entitled to take the benefit. That conclusion follows from Helton v Allen and Edwards v State Trustees Ltd.[33] Where the person has been found guilty of murder, as in the present matter, the case by case analysis favoured by Whelan and Kyrou JJA in Edwards v State Trustees Ltd is not required. The criminal culpability of a convicted murderer requires that they ought not be entitled to take a benefit arising from the death.
[33] Specifically, the decision of Whelan JA with whom Kyrou JA agreed.
Applying the above to the case of a will, the position is that the killer's share of the estate falls into the residue for the benefit of the remaining residuary beneficiaries (excluding, of course, the killer).[34]

Disposition

[34] Re Peacock; Midland Bank Executor and Trustee Co v Peacock [1957] Ch 310.

In my view, it is quite plain that the rights and interests which I have described above constitute benefits that the first defendant obtained by, and as a direct result of, the death of BB.
Accordingly, to allow the first defendant to retain those benefits would be to allow the retention of benefits that arise directly as result from the murder committed.[35] The forfeiture rule thus applies such that the first defendant must be taken to have forfeited any rights and interests that the first defendant had as a beneficiary under the BB Testamentary Trust.
[35] Permanent Trustee v Gillett [23] ‑ [24] (Austin J).
The declaration which is sought in paragraph 1 of the Originating Summons should be granted.

F. Second issue - CC's Estate (forfeiture rule)

Overview

The second issue addresses the relief sought by the second plaintiff in paragraph 2 of the Originating Summons. It concerns the application of the forfeiture rule to CC's Estate.
By cl 4 of CC's Will, CC gave her entire estate to BB, but if he predeceased her, then to her trustee to hold on trust in equal shares for her children until they reached a specified age. By virtue of s 120(a) of the Property Law Act 1969 (WA), the gift by CC to GG lapsed, it being deemed that GG did not survive CC.
It follows that only two of CC's children survived her, being the first defendant and the second defendant. Accordingly, pursuant to the terms of CC's Will, the trustee of her estate held half of CC's estate for the first defendant on trust until the first defendant turned a specified age (which has occurred), at which time it was to vest in the first defendant.

Disposition

As with the resolution of the first issue, I consider it is quite plain that the first defendant has directly derived the interest in CC's Estate as a consequence of her death, and the forfeiture rule must apply such that the first defendant should be taken to have forfeited any interest in CC's Estate.[36]
[36] Permanent Trustee v Gillett [23] ‑ [24] (Austin J).
The declaration which is sought in paragraph 2 of the Originating Summons should be granted.

G. Third issue - the FF Investment Trust (forfeiture rule)

Overview

The application of the forfeiture rule in relation to the FF Investment Trust is more nuanced than the BB Testamentary Trust or CC's Estate. I say this because the FF Investment Trust was established in 2012, before the deaths of BB and CC.
The FF Investment Trust is a discretionary trust. The first defendant was a Specified Beneficiary of the FF Investment Trust with all the rights and entitlements that came with that prior to the deaths of BB, CC and GG.
The terms of the FF Trust Deed relevantly include the following matters:[37]
[37] First Executor Affidavit, [40] - [50] and Attachment 18.
(a)The trustee has an absolute discretion to apply or set aside income or part of the income of the trust for the benefit of one or more beneficiaries to the exclusion of others who are living or are in existence at the time of the payment (cl 4.1 of the FF Trust Deed).
(b)The trustee has power to resolve to accumulate income so that it forms part of the capital of the trust fund rather than be distributed to a beneficiary (cl 4.2).
(c)The trustee may appoint a person or any legal entity who is not a beneficiary to be a beneficiary with the consent of the Appointor of the trust (cl 3.2).
(d)The trustee has the power to make determinations prior to the termination date of the trust (being the date of the winding up of the trust) in relation to the capital of the trust and specifically the shares and proportions in which the capital is held for beneficiaries of the trust (cl 5.1).
(e)If the trustee has not made a determination in respect of any part of the capital under cl 5.1, then at the date of termination of the trust, by operation of cl 14.2, the capital will be held for the surviving specified beneficiaries in equal shares as tenants in common or, where a specified beneficiary has died leaving children, then for the children of that specified beneficiary per stirpes (cl 14.2).
(e)The trust must be wound up on the vesting date (being 80 years from 2 March 2012) or on an earlier date as determined by the trustee with the written consent of the Appointor (cl 14.1).

Disposition

The fourth plaintiff advanced comprehensive submissions as to whether it could be concluded that the first defendant had gained a benefit in respect of the FF Investment Trust as a consequence of the deaths of BB, CC and GG.[38]
[38] Plaintiffs' submissions dated 30 May 2023, [ 57] - [72].
Ultimately, the submission put on behalf of the fourth plaintiff was that the first defendant derived no direct benefit in this regard. I accept the force of that submission, largely for the following reasons:
(a)The first defendant has not derived any interest in the FF Investment Trust that the first defendant did not already have, namely the right to be considered as a potential beneficiary and the right to the due administration of the trust in accordance with the terms of the trust.
(b)Further, the first defendant gained no legal or equitable interest in the fund of the trust, and remains only a potential beneficiary.
(c)Allied to the foregoing point, the trustee of the FF Investment Trust has an absolute discretion in relation to the making of distributions of income and capital from the trust fund.
(d)Each of BB, CC and GG did not have any legal or beneficial interest in the property of the FF Investment Trust fund and were, like the first defendant, potential beneficiaries of the trust only. Accordingly, the first defendant did not by their deaths, gain any legal or beneficial interest that any of BB, CC or GG had in the property of FF Investment Trust.

I therefore conclude that the forfeiture rule is not engaged in this respect to forfeit any rights or interest the first defendant has as a specified beneficiary of the FF Investment Trust, and the rule does not prohibit the trustee of the trust from making distributions of income or capital in favour of the first defendant.
The declaratory relief sought by the fourth plaintiff in paragraph 3(a) of the originating summons should therefore be granted.

H. Fourth issue - the FF Investment Trust (removal of beneficiary)

Overview

The answer to the third issue gives rise to an additional series of issues, which I will address as the fourth issue and the fifth issue. These additional issues are the subject of the relief sought by the fourth plaintiff in paragraphs 3(b) and 3(c) of the originating summons, and in paragraphs 4(a) and 4(b) of the originating summons.
The fourth plaintiff seek a declaration or a direction that, in its capacity as the trustee of the FF Investment Trust, it has the power to remove the first defendant as a specified beneficiary of the FF Investment Trust, subject to compliance with the FF Trust Deed. In the event the court is satisfied that such power exists, the fourth plaintiff seeks judicial advice that it would not be unreasonable or unjustifiable for it to exercise the power.

Relevant principles

The approach to the construction of a trust deed is relatively uncontroversial. The rules applicable to written contracts also apply to trust instruments. The task involves ascertaining what a reasonable person would have understood the parties to the instrument mean. The primary task is to discover the intention of the settlor from the words used in the instrument read as a whole.[39] The words of the clauses in a trust deed must be given their ordinary and natural meaning, read in the context of the trust deed as a whole, unless of course the words have a special or technical meaning.[40]
[39] Mercanti v Mercanti [2016] WASCA 206; (2016) 340 ALR 290 [68] - [76] (Buss P).
[40] Mercanti v Mercanti [80] (Buss P).
As to the exercise of a trustee's discretionary powers, such powers are to be exercised in good faith upon a real and genuine consideration in accordance with the purposes for which the discretion was conferred, and not for any purpose or design that is beyond the intended scope and purpose of the trust. To exercise the power in such a manner would constitute a fraud on the trust power.[41]

Consideration

[41] Mercanti v Mercanti [245] (Buss P).

Clause 3 of the FF Trust Deed is headed 'Beneficiaries'. Clause 3.3 is headed 'Removal of beneficiaries' and relevantly provides as follows:
3.3 Removal of beneficiaries
(1)A beneficiary, other than a Specified Beneficiary will cease to be a beneficiary:
(a)…
(b)where the Trustee, with the consent of the Appointor, by deed declares that a person, corporation, trust or other entity (or class of them) is no longer to be included as a beneficiary and the deed may be expressed to be irrevocable.
(2)If the Trustee or a beneficiary makes a declaration under sub‑clause 3.3(1), the Excluded Class shall as and from the date of that declaration be modified accordingly.
(3)The provisions of sub-clause 3.3(1)(b) will be effective to exclude as a beneficiary a person under a disability or, or more than one beneficiary, but will not be effective where the operation would result in there being less than two natural persons as beneficiaries of the Trust.
(4)A person who has been removed as a beneficiary, may be reappointed unless the removal was subject to an irrevocable declaration.
(5)Nothing in clause 3.3 affects the rights of a person who has ceased to be a beneficiary to income or capital to which that person became entitled prior to such cessation.
(6)A Specified Beneficiary may only cease to be a beneficiary where a declaration pursuant to sub-clause 3.3(1)(b) is made and a variation of this deed to that effect is made in accordance with clause 8 and where there will remain at least one Specified Beneficiary.
Clause 8 of the FF Trust Deed is headed 'Variation of Trust'. Clauses 8.1 and 8.2 provide as follows:
8.1Variation of Trust
8.1Variation of trust deed
Subject to clause 8.2, at any time prior to the termination date the Trustee may with the written consent of the Appointor (if any) by deed alter, vary or revoke any trust or provision of this deed other than this clause and clauses 3.4, 3.5 and 7.4.
8.2 Restriction on variation, resettlement
An alteration, variation or revocation pursuant to clause 8.1 must not:
(a)divert or modify a vested interest of a beneficiary in income or capital or the investment representing that or income derived from any such investment to which such beneficiary has become absolutely entitled pursuant to this deed or result …in any adverse taxation consequences for any beneficiary that was not intended by the Trustee; or
(b)infringe any applicable law or rule against perpetuities or relating to remoteness of vesting or the period during which income may be accumulated or otherwise extend the termination date or resettle the Trust for tax and/or stamp duty purposes or result in the provision of the trust becoming void.
Having regard to the foregoing provisions of the FF Trust Deed, on a proper construction of that deed, I accept that the fourth plaintiff, with the consent of the Appointor, has power to declare the first defendant is no longer a beneficiary of the trust. There are two provisos to this.
The first proviso is that the declaration is to be made in the form of a variation of the trust deed in accordance with cl 8.1 of the FF Trust Deed, and does not have any of the consequences set forth in cl 8.2. The second proviso is that there must remain at least two natural persons left as beneficiaries of the trust.[42] As to the second proviso, I am satisfied on the evidence that there are more than two natural persons remaining as beneficiaries, other than the first defendant.[43]
[42] By reason of cl 3.3(3) when read with cl 3.3(6) of the FF Trust Deed.
[43] Plaintiffs' submissions dated 30 May 2023, [85] - [87].
There being power to remove the first defendant as a beneficiary, it remains to consider whether the court should provide the fourth plaintiff with judicial advice that it would not be unreasonable or unjustifiable to exercise the power to remove the first defendant as a beneficiary of the FF Investment Trust.
The fourth plaintiff submits that the trustee's discretionary powers are to be exercised having regard to the fact that the primary purposes of establishing the trust include giving the trustee the widest possible discretion in the exercise of its powers. Specifically, cl 2.3 of the FF Trust Deed provides as follows (with the plaintiffs placing particular reliance on the terms of cl 2.3(4)):
The primary purposes of establishing the Trust are (without limitation):
(1)to directly or indirectly provide financial and other assistance and benefits in any degree for any one or more of the beneficiaries;
(2)to invest or utilise all or any part of the trust fund to achieve the purpose in sub clause 2.3(1) without the necessity to have regard to generating income or accretion of capital;
(3)to assist or benefit beneficiaries without the necessity to have regard to the taking of security or the possibility of incurring a loss of capital; and
(4) to give to the Trustee the widest possible discretion in the exercise of its powers. (emphasis added)
In support of the exercise of the discretion, and to justify the exercise of the powers under the FF Trust Deed, the fourth defendant emphasises the following matters:
(a)First, the FF Investment Trust is a family discretionary trust created to make provision primarily for the children of BB and CC (as Specified Beneficiaries) and BB and CC (as General Beneficiaries). BB, until his death, was the sole appointor of the FF Investment Trust and was one of two directors of the corporate trustee of the FF Investment Trust.
(b)Second, and fundamentally, the first defendant was charged with murdering BB, CC and GG, and with attempting to murder the second defendant.
(c)Third, between 2015 and 2022, the trustee of the FF Investment Trust made significant distributions for the benefit of the first defendant, the large proportion of which was to fund the first defendant's legal representation in respect of defending the criminal charges.
(d)Fourth, the first defendant has been convicted in respect of all charges and has exhausted all avenues of appeal.
(e)Fifth, the remaining net assets in the FF Investment Trust are relatively modest.
I agree the foregoing matters are prima facie relevant to the exercise of the powers.
Counsel for the plaintiffs and the second defendant were unable to identify authority which provided direct support for the relief which is sought in paragraph 3(c) of the Originating Summons.[44] A number of authorities were however cited which were said to be of some assistance by way of analogy.[45] I will deal with these authorities below.
[44] ts 41 - 42.
[45] Plaintiffs' further submissions dated 6 July 2023; and Second Defendant's Outline dated 10 July 2023.
By way of example, my attention was drawn by the plaintiffs to EEU20 v Meat Industry Employees' Superannuation Fund Pty Ltd,[46] a decision of Mortimer J (as her Honour then was). Her Honour considered that in assessing whether a superannuation trustee's death benefit determination was fair and reasonable in all the circumstances, regard should have been had by the primary tribunal reviewing the exercise of the trustee's discretion, to allegations that the spouse of the deceased member had been involved in events that led to the death of the deceased.
[46] EEU20 v Meat Industry Employees' Superannuation Fund Pty Ltd [2020] FCA 1359.
The involvement by the spouse in the incident that resulted in the deceased's death, was considered by the court to be a matter that was relevant to the assessment of what was a fair and reasonable exercise of the trustee's discretion in respect of to whom the death benefits should have been paid.[47] The authority is of limited assistance to the issue before me, as the fourth plaintiff frankly acknowledged, as the matter was primarily assessed in the context of a procedural fairness complaint.
[47] EEU20 v Meat Industry Employees' Superannuation Fund Pty Ltd [77] - [82].
Counsel for the second defendant referred to Curwen v Vanbreck Pty Ltd[48] and Mandie v Memart Nominees Pty Ltd,[49] by way of analogy.
[48] Curwen v Vanbreck Pty Ltd [2008] VSC 338 [80] (Mandie J).
[49] Mandie v Memart Nominees Pty Ltd [2020] VSCA 281; (2020) 62 VR 528 [183] (Tate, Niall and Emerton JJA). An application for special leave was subsequently dismissed by the High Court.
In Curwen v Vanbreck Pty Ltd, the Supreme Court of Victoria examined the exercise by a trustee of a power to exclude a beneficiary. The trust deed was expressed in broad terms, with an express stipulation that every discretion vested in the trustee 'shall be absolute and uncontrolled' and every power vested in the trustee 'shall be exercised at its absolute and uncontrolled discretion' and the trustee shall have the 'like discretion in deciding whether or not to exercise any such power'. The trust deed also provided that the trustee may at any time by deed, whether revocable or irrevocable, 'appoint that any person who would otherwise be a Beneficiary for the purposes of this Deed shall be excluded from the class of Beneficiaries' (cl 20(1)).
Mandie J accepted that the exercise of an exclusion power in a trust deed would be invalidated if the trustee's purpose (or one of the trustee's purposes) was to prevent access by a beneficiary (including a beneficiary of a discretionary trust) to trust accounts or other information relating to a trust. That was because, in his Honour's view, the denial of such access rights to a beneficiary would not be a proper purpose for exercise of the exclusion power. However, on the facts of the case before, his Honour was not satisfied, on the balance of probabilities, that such improper purpose was one of the trustee's purposes in exercising the exclusion power.[50]
[50] Curwen v Vanbreck Pty Ltd [83].
In analysing the issue, Mandie J accepted the principles stated by McGarvie J in Karger v Paul,[51] and noted that the exercise of a discretion in the terms of the trust deed in the case before him would not be examined or reviewed by the courts so long as the essential component parts of the exercise of the particular discretion are present. The essential component parts would be present, according to McGarvie J, if the discretion was exercised by the trustees in good faith, upon a real and genuine consideration, and in accordance with the purposes for which the discretion was conferred. The exception noted by his Honour was that the validity of the trustee's reasons would be examined and reviewed if the trustees chose to state their reasons for their exercise of discretion.
[51] Karger v Paull [1984] VR 161, 163 - 164.
Mandie J went on to note McGarvie J's conclusion that (in the case before him) it was open to the court to examine the evidence to decide whether there had been a failure by the trustees to exercise their discretion in good faith, upon a real and genuine consideration, and in accordance with the purposes for which the discretion was conferred.[52]
[52] Curwen v Vanbreck Pty Ltd [52].
Mandie J concluded, from his review of the authorities, that although a trustee's reasons for exercising a discretionary power are not examinable for the purpose of challenging the way in which the discretion was exercised, they are examinable to enable an enquiry as to whether the trustee had an ulterior or improper purpose and as to whether the trustee gave real and genuine consideration to the exercise of the discretion.[53]
[53] Curwen v Vanbreck Pty Ltd [54].
The requirement that the trustee act upon 'real and genuine consideration' has its difficulties, according to Mandie J, in cases where the trust deed does not provide any governing criteria for the exercise of the power concerned and the trustee is left entirely at large in deciding whether and how to exercise the power.[54]
[54] Curwen v Vanbreck Pty Ltd [55].
In Mandie v Memart Nominees Pty Ltd, the Victorian Court of Appeal examined a power to exclude General Beneficiaries in the following terms:
... PROVIDED FURTHER that the Trustee at any time and from time to time may (subject to Clause 10 hereof) declare in writing that any person shall thereafter be excluded from the class of General Beneficiaries notwithstanding that but for such exclusion he would by reason of one or more of the matters or circumstances hereinbefore referred to have been a General Beneficiary and the class of General Beneficiary shall as from the date of the making of any such declaration be modified accordingly ...
The Court of Appeal declined to accept the submission that the trustee's declaration was made without power on the basis that it altered the original purpose or substratum of the trust, and effectively constituted a new settlement. The court adopted the approach taken by the NSW Court of Appeal in Kearns v Hill,[55] where the court similarly rejected an argument that a broadly expressed amendment power should be read down so as to prevent an amendment that destroyed the 'substratum of the trust'. In doing so, Meagher JA in Kearns v Hill described the trust deed in that case as:[56]

… an example of many such documents which have been commonly used for many years which are designed to deal with the disposal of family assets in such a way that the trustees are furnished with the most ample powers of management and disposition of the settled fund coupled with maximum flexibility in the use of those powers, so as to accommodate the settled fund to emerging and ever-changing economic and revenue considerations.
[55] Kearns v Hill (1990) 21 NSWLR 107.
[56] Kearns v Hill (109).

The Court of Appeal in Mandie v Memart Nominees Pty Ltd observed that the trust in that case had been established for a long period of time and noted that the trust deed identified the persons who fell within the class of General Beneficiaries, with a very broad power to exclude General Beneficiaries. The Court concluded that the exercise of the exclusion power would reduce the pool of persons who were entitled to be considered for benefaction of both income and corpus under the trust.[57] The reduction of the pool is, of course, an inevitable consequence of such an exclusion.
[57] Mandie v Memart Nominees Pty Ltd [240].
The Court of Appeal ultimately concluded that there was simply no warrant to read down the generality of the power by confining it to an exclusion for cause in response to disentitling conduct.[58]

Disposition

[58] Mandie v Memart Nominees Pty Ltd [243].

The approach endorsed by the Victorian Supreme Court and the Victorian Court of Appeal, as described above, should be applied by analogy to the present proceedings.
In the case of the FF Investment Trust, it must be emphasised that the discretionary power to exclude a beneficiary which is vested in the trustee pursuant to cl 3.3(1)(b) of the trust deed, is broadly stated. Other than formal requirements, there are no words of limitation or restriction. Nor should any be imposed.
It is also not necessary, in my view, for the trustee to rely upon, or to establish, disentitling conduct. The existence of conduct such as a conviction for murder, can be a relevant factor to the exercise of a power to exclude a beneficiary, but it is not decisive.
So, while I do not discount the first defendant's convictions for murder of three of the five persons for whom the trust was primarily intended to make provision in life, including the original Appointor, it is also highly relevant to the proposed exercise of the power by the trustee that:
(a)a substantial proportion of the financial resources of the FF Investment Trust have been applied to fund the first defendant's defence costs, leaving a modest net asset position in the trust; and
(b)having been served with the proceedings, the first defendant has elected not to oppose the relief which is sought.
Now that the first defendant has been convicted and has exhausted all avenues of appeal, it is not unreasonable, in my respectful opinion, for the trustee, having regard to the broad discretion conferred by the FF Trust Deed (when regard is had to cl 2.3(4)), to determine to cease making any further provision for the first defendant and to have the first defendant removed as a beneficiary.
In my view, on the affidavit evidence adduced by the plaintiffs, the exercise of the trustee's discretionary power, in the manner which is proposed, would represent an exercise of the power in good faith by the fourth plaintiff and for a purpose that is within the intended scope of the trust instrument established by BB.
It is therefore appropriate in the circumstances for the court to provide the judicial advice sought by the fourth plaintiff in its capacity as trustee.

Fifth issue - the FF Investment Trust (capital declaration)

Overview

In the alternative, the fourth plaintiff seeks a declaration by paragraph 4(a) of the Originating Summons that, as the trustee of the FF Investment Trust, it has the authority under cl 5.1 of the FF Trust Deed to declare that the whole of the capital of the trust is solely held for the second defendant. The consequence of this would be that, on the termination of the trust, the whole of the trust capital would be held for the second defendant.
The relevant provisions of the FF Trust Deed are extracted below:[59]
[59] First Executor Affidavit, [40] - [50] and Attachment 18.
5Capital
5.1Distribution of capital
Until the trust is wound up, the Trustee holds the capital for the beneficiaries as follows:
(1)on or prior to the termination date; the whole or any part of the capital, is held for one or more of the beneficiaries as are then living or in existence (to the exclusion of others) in such shares or proportions as the Trustee in its discretion may from time to time determine in the manner provided in this clause; and
(2)on termination of the Trust; the capital available for distribution which has not been the subject of an effective determination pursuant to sub-clause 5.1 must be held for the beneficiaries named and in the manner described in sub-clause 14.2(4).
5.2Determination of the Trustee
A determination of the Trustee pursuant to sub-clause 5.1(1) must be either:
(1)an irrevocable written declaration, instrument or resolution of the Trustee; or
(2)a written declaration, instrument or resolution of the Trustee made prior to the termination date and expressed to be revocable during a period … which expires prior to the termination date. If it is not revoked before the expiration of the relevant period, it will become effective.
…
5.4Effect of determination
When a determination of the Trustee in favour of a beneficiary becomes irrevocable, the beneficiary will have an immediate indefeasible interest in the capital the subject of the determination. If the distributed capital continues to be held by the Trustee, the Trustee must hold it on a separate trust for the beneficiary.

Disposition

The fourth plaintiff correctly submitted that, unlike the power conferred by cl 3.3(6) of the FF Trust Deed, the power granted by cl 5.1 is not subject to the approval or consent of the Appointor. Further, I accept the fourth plaintiff's submission that the trustee's discretion to make a determination under cl 5.1 is a broad one and must be construed having regard to cl 2.3(4) which (as noted above) provides that one of the primary purposes of establishing the trust is to give the trustee the widest possible discretion in the exercise of its powers.
It follows that I accept the fourth plaintiff's claim for declaratory relief in paragraph 4(a) of the Originating Summons. There being authority found in cl 5.1 of the FF Trust Deed to declare that the whole of the capital of the trust is solely held for the second defendant, it remains to consider whether the court should provide the fourth plaintiff with judicial advice that it would not be unreasonable or unjustifiable to exercise that authority.
In this regard, I consider the same matters to which I have referred in the context of the fourth issue above (at [71] to [93]), apply with equal force to support the granting of the judicial advice sought by the fourth plaintiff in respect of the fifth issue. I consider it appropriate to provide the fourth plaintiff with the judicial advice sought, and I propose therefore to grant the relief sought by the fourth plaintiff in paragraph 4(b) of the Originating Summons.

J. Suppression and restriction orders

Background

Following an application made by the second defendant in October 2021, Kenneth Martin J made orders to impose a regime whereby the parties to this proceeding would be anonymised, his Honour's reasons would be suppressed on an interim basis, interlocutory hearings would be conducted in a closed court room, and access to documents filed with the court including the transcript would be subject to access restrictions pursuant to O 67B r 5 RSC.[60]
[60] AA as executor of the estate of BB v XX [2021] WASC 455 and orders made 27 December 2021.
His Honour reserved for consideration of the judicial officer who was to preside at the final hearing whether that hearing should be conducted in open chambers or not, and whether the interim restrictions he imposed should continue, be varied or be discharged.[61]
[61] AA as executor of the estate of BB v XX [124].
The bases for the interim closed court order made by Kenneth Martin J are conveniently set out in his Honour's reasons at [46], [49], [66] and [69]. In essence, the reasons relied upon by the second defendant are as follows:
(a)First, a concern has been raised as to the physical safety of the second defendant based upon particular threats in the country where the second defendant presently resides.
(b)Second, concerns are raised over the second defendant's mental health, notwithstanding the strong recovery made by the second defendant from the injuries inflicted in the attack. This concern includes issues arising from social media reports about the second defendant, which has caused considerable distress to the second defendant.
(c)Third, concerns have been identified as to the second defendant's vulnerability given the financial circumstances and the legacy of the injuries suffered by the second defendant. It is submitted that these circumstances make the second defendant susceptible to so-called 'gold diggers'.
(d)Fourth, a broader concern has been raised as to the second defendant's privacy concerning the financial position of the second defendant.
The foregoing concerns were the subject of affidavit evidence before his Honour, which included the tender of a neuropsychological report dated 18 June 2021 and an affidavit sworn by a senior counsel from the country in which the second defendant resides. That senior counsel is the curator ad litem and curator ad personem of the second defendant.
At the directions hearing before me on 27 April 2023, my attention was drawn to the affidavit material and submissions which had been placed before Kenneth Martin J at the previous hearing. The second defendant also relied upon a further, more recent, affidavit sworn by one of the second defendant's solicitors. That affidavit made quite clear that news articles in relation to the second defendant and the murderous acts of the first defendant remain on the internet, and can be accessed through search engines.
Having regard to this material, and the submissions advanced by counsel, I made further interlocutory orders to continue the restrictions on access to documents on the court file and to accede to a regime of further orders as proposed by the second defendant to anonymise the names of the parties and various details of the matter. At the hearing, I also made an order that the question whether the final hearing of the proceedings be conducted in closed court be reserved by the court.
The view I ultimately took, prior to the hearing on 23 June 2023, was that the final hearing should be conducted in open court. However, as noted, I considered the regime for restricting access to the court documents filed by the parties, and to the transcript, should continue in force. Similarly, I was of the view, and remain of the view, that the process for anonymising the names of the parties should continue.
I will briefly explain my reasoning in this regard.

Reasoning

The restrictions upon access which have been imposed by the court to date were not, and are not, lightly made. The accepted starting proposition as a matter of common law is that justice must not be administered behind closed doors, and court proceedings must be exposed in their entirety to the cathartic glare of publicity.[62]
[62] David Syme & Co Ltd v General Motors-Holden's Ltd [1984] 2 NSWLR 294, 300 (Street CJ).
The starting point in considering an application to have proceedings heard in camera and to restrict access to documents filed with the court is to recognise the fundamental importance of the principle of open justice. In TK v Australian Red Cross Society,[63] Malcolm CJ recognised there can be exceptions from the principle of open justice.[64] However, his Honour observed that the circumstances in which the Court would depart from the fundamental principle of the public administration of justice would need to be very exceptional. His Honour further observed that:[65]
The onus on a party seeking public anonymity as a plaintiff or any other limitation on publicity with respect to proceedings must necessarily be heavy.
[63] TK v Australian Red Cross Society (1989) 1 WAR 335, 336 (Malcolm CJ).
[64] TK v Australian Red Cross Society (336 - 337).
[65] TK v Australian Red Cross Society (337).
The application before Malcolm CJ in TK v Australian Red Cross Society did not seek orders that the proceedings be held in camera, only that the identities of the applicants should not be publicly disclosed. Nonetheless, the same principle underpins the analysis and the same considerations apply.
In XY v WA Country Health Service [No 2],[66] Pritchard J explained the proper approach to a decision whether to depart from the fundamental principle of open justice. Her Honour posited a two stage approach which first requires an identification of any competing interests which may warrant a departure from that principle, and then an undertaking of a balancing exercise which weighs those competing interests with the principle of open justice.
[66] XY v WA Country Health Service [No 2] [2016] WASC 245.
The exceptions to the principle were also recently explored by Smith J in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 22].[67] Her Honour made reference to the observations of French CJ in Hogan v Hinch,[68] in which his Honour the then Chief Justice explained the basis of the court's power to restrict the publication of proceedings conducted in open court and when that power might be exercised. His Honour first addressed the general principle:[69]
[20]An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute.
[67] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 22] [2023] WASC 285.
[68] Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506.
[69] Hogan v Hinch [20] (footnotes omitted).
His Honour went on to address the exceptions to the general principle, by reference to the dictates of the proper administration of justice:[70]
[21]It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court's inherent jurisdiction or an inferior court's implied powers. This may be done where it is necessary to secure the proper administration of justice. In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could 'cause an entire destruction of the whole matter in dispute'. Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. In the prosecution of a blackmailer, the name of the blackmailer's victim, called as a prosecution witness, may be suppressed because of the 'keen public interest in getting blackmailers convicted and sentenced' and the difficulties that may be encountered in getting complainants to come forward 'unless they are given this kind of protection.' So too, in particular circumstances, may the name of a police informant or the identity of an undercover police officer. The categories of case are not closed, although they will not lightly be extended. Where 'exceptional and compelling considerations going to national security' require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified. The character of the proceedings and the nature of the function conferred upon the court may also qualify the application of the open-court principle. The jurisdiction of courts in relation to wards of the State and mentally ill people was historically an exception to the general rule that proceedings should be held in public because the jurisdiction exercised in such cases was 'parental and administrative, and the disposal of controverted questions ... an incident only in the jurisdiction'. Proceedings not 'in the ordinary course of litigation', such as applications for leave to appeal, can also be determined without a public hearing.
[22]It is a common law corollary of the open-court principle that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings.
...
[26]In my opinion the better view is that there is inherent jurisdiction or implied power in limited circumstances to restrict the publication of proceedings conducted in open court. The exercise of the power must be justified by reference to the necessity of such orders in the interests of the administration of justice ...
[70] Hogan v Hinch [21] – [26] (footnotes omitted).
The matters identified by Kenneth Martin J, which I have summarised above, provide support, in my respectful view, for the making of orders to restrict access to documents and to anonymise the names of the parties. In particular:
(a)the physical safety of the second defendant; and
(b)the potential for the particular threats in the second defendant's country of residence to materialise,
present as valid and serious concerns on the part of those who presently represent the interests of the second defendant. I also take judicial notice that there is a considerable degree of civil unrest in the country in which the second defendant is presently resident, which provides a heightened risk for the safety of the second defendant.
Further, the medical concerns expressed as to the second defendant's mental health, which may be impacted by the further ventilation of these matters are of significance, in my assessment, and properly bear on the question whether a regime should be ordered which limits or restricts the open justice principle. It might be thought that, as time moves on, the impact on the second defendant will gradually recede. Some years have now elapsed since the murders were committed and the second defendant sustained significant injuries. Nonetheless, I am not prepared to accept that the impact on the second defendant has diminished to a point that this concern may be put to one side. I would prefer to adopt a cautious approach in this regard, given the nature and extent of the injuries suffered by the second defendant.
I would, in contrast, give far less weight to the second defendant's general privacy concerns as to the second defendant's financial position, and the second defendant’s susceptibility to advances from opportunistic persons with dishonest desires, seeking to exploit the second defendant. These are not matters which on their own present as sound bases for imposing restrictive measures on the publication of court proceedings or precluding access to court documents.
The matters to which I have referred at [113] and [114] above justify the continued suppression of Kenneth Martin J's previous reasons (which contain various references to the names of the parties and other identifying details), the regime for publishing these reasons in an anonymised format, and for restricting access to documents. Those measures of protection are sufficient in my view to serve the proper administration of justice, informed in this case by the concerns for the physical safety and mental health of the second defendant, which I consider are real and of substance.
In these circumstances, it was unnecessary to go further and require that the final hearing of the matter be conducted in a closed court, and it is unnecessary to order that these reasons be suppressed. The circumstances are not so exceptional and compelling as to demand that these steps be taken. An important factor which tells against the imposition of any further layer of restrictions is that the applications before the court are brought by trustees and executors to disturb or modify the entitlements of a beneficiary. It is proper that applications of such a nature be conducted, to the extent possible, in open proceedings which may be subjected to public and professional scrutiny.
That said, I am prepared to delay the formal publication of these reasons for a suitable period to afford the advisers to the plaintiffs and the second defendant an opportunity to consider these reasons, and seek such further orders as they may see fit to do.

K. Conclusion and orders

For the foregoing reasons, I propose to grant the relief sought by the plaintiffs in the Originating Summons. I will hear from counsel as to the precise form of the final orders which should be made including as to costs and as to the publication of these reasons.
Postscript
The court notes that a draft copy of the Court’s reasons was provided to the solicitors for the parties on 23 February 2024 to allow the parties the opportunity to consider those reasons, as is noted in [118] above. I made orders to the effect that the formal publication of the reasons for decision be deferred until further order of the Court, and listed the matter for a directions hearing on 22 March 2024 to hear submissions from the parties in relation to the publication of the reasons for decision.
On 23 February 2024, I made formal orders to grant the relief sought by the plaintiffs in the Originating Summons. The orders made by the Court are set out in Attachment B to these reasons.
Following a review of the reasons, the solicitors for the second defendant proposed further minor changes to the draft reasons for the purpose of better ensuring the anonymity of the parties and the matters which are the subject of these proceedings. Having considered those further minor changes, I formed the view that some amendments were required to these reasons which were made prior to formal publication of the reasons on 22 March 2024.

ATTACHMENT A
Diagram of Parties, Entities and Trusts

ATTACHMENT B
Orders made on 23 February 2023

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LM
Associate to the Honourable Justice Lundberg
22 MARCH 2024