Burke v Public Trustee for the State of South Australia

[2022] SASCA 64

Supreme Court of South Australia

(Court of Appeal: Civil)

BURKE v PUBLIC TRUSTEE FOR THE STATE OF SOUTH AUSTRALIA

[2022] SASCA 64

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Stanley)

1 July 2022

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - GENERALLY

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES

EQUITY - TRUSTS AND TRUSTEES - EXPRESS TRUSTS CREATED BY WILL - OTHER MATTERS

SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - WHERE UNCERTAINTY - AS TO PERSON OR OBJECT

EQUITY - TRUSTS AND TRUSTEES - POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES - GENERAL MATTERS - CONFLICT OF INTEREST

Lady Edith Badger OAM died at the age of 100, a widow with no children or grandchildren. She left a will dated 16 July 2012 (the 2012 will), which by clause 1 appointed Mr Richard Burke as her sole executor and trustee and gave the whole of her estate to him to “distribute the same as he shall know to be in accordance with my wishes”.

A month later, Mr Burke also passed away, without having obtained a grant of probate in her estate. He was survived by Mrs Carolyn Burke, his wife and the sole executor and beneficiary of his estate. But Mrs Burke did not obtain a grant of probate in either estate; upon her request, the Public Trustee obtained a grant of letters of administration with the will annexed in the estate of each.

In administering Lady Badger’s estate, an issue of construction of the 2012 will arose. That issue was whether, by clause 1, Lady Badger had given her estate to Mr Burke beneficially or as the trustee of a half secret trust. On 23 July 2020, the Public Trustee made an application for judicial advice and directions under s 69 of the Administration and Probate Act 1919 (SA) (the Act) as to the proper distribution of Lady Badger’s estate. On 17 August 2020, the primary judge heard that application and reserved her decision.

On 12 November 2020, Mrs Burke made an application to be joined as a party to the Public Trustee’s application, asserting an interest in the estate and seeking to put an alternative construction of clause 1 to the effect that Mr Burke had been left the whole of the Lady Badger’s estate beneficially and, as the sole beneficiary of his estate, she was therefore entitled to it.

On 25 February 2021, the primary judge refused Mrs Burke’s application for joinder and determined that, on the proper construction of the 2012 will, Mr Burke had been given Lady Badger’s estate as trustee of a half secret trust. The objects of the trust were those set out in a letter of Lady Badger’s wishes dated 15 August 2008 (the 2008 letter of wishes); neither Mr Burke nor Mrs Burke were included in that letter, and so stood to receive nothing upon distribution of the estate. The primary judge gave advice and directions that the Public Trustee would be justified in distributing Lady Badger’s estate on that basis.

Mrs Burke now appeals against the decision to refuse her application for joinder.  She does so on various grounds which may be summarised as involving: (i) complaints about the Public Trustee’s role, and in particular that she was acting in a position of conflict; (ii) complaints relating to Mrs Burke’s asserted interest in Lady Badger’s estate, and in particular the primary judge’s rejection of her contentions as to the proper construction of the 2012 will, and as to the various bases upon she asserted an interest in the estate, as unarguable; and (iii) procedural complaints to the effect that the primary judge erred in declining Mrs Burke access to further documents or information, or to be heard further in relation to matters relevant to complaints (i) and (ii).

Mrs Burke also applied to adduce further evidence on the appeal in the form of an email sent to Mrs Burke shortly after the death of Lady Badger.

Held, per Doyle JA (Stanley AJA agreeing), dismissing the appeal:

1.Even taking the evidence at its highest from the perspective of Mrs Burke, it was not capable of establishing any legal relationship between Mrs Burke and the Public Trustee that precluded the Public Trustee from bringing the application for advice and directions, or otherwise gave rise to any duty or obligation owed by the Public Trustee to Mrs Burke.

2.The Public Trustee’s application was for advice and directions under s 69 of the Act. While there is authority to support a supplementary jurisdiction under that section to make binding determinations, neither the parties nor the primary judge sought to invoke that jurisdiction. The appeal should be approached upon the basis that the application was approached below, namely that it was necessary for Mrs Burke to establish an arguable basis for an interest in the estate of Lady Badger in order for her to be joined or otherwise have any further right to be heard on the application for directions. Even if it might have been preferable had the parties sought to convert the application into an inter partes hearing that would be binding upon the parties (and anyone else joined), that did not occur.

3.Mrs Burke did not establish an arguable interest in the estate of Lady Badger.  In her 2012 will, Lady Badger left her estate on a half secret trust to Mr Burke.  The evidence did not establish any arguable basis for Mrs Burke’s contention that she or Mr Burke were beneficiaries under that half secret trust.

4.Mrs Burke has not made out a basis for the receipt on appeal of the further evidence sought to be relied upon.

5.On the material before the Court, Mrs Burke was given an adequate opportunity to prepare and present her case as to the Public Trustee’s alleged conflict of interest, and as to the existence of an arguable interest that might require joinder.  Mrs Burke’s complaint that she was not afforded procedural fairness by the primary judge must be rejected.

Held, per Livesey P (dissenting), allowing the appeal:

1.The exercise of discretion to refuse joinder was vitiated by two errors.  The first was that the test for standing was conflated with the test for joinder.  Mrs Burke had standing because if her contentions were upheld she was entitled to the estate. She should have been heard on the application for advice or direction.

2.The second error was that the court gave ex parte advice in circumstances where the nature of the case required that Mrs Burke not only be heard but joined to facilitate a binding determination of contested issues of fact and law raised by the application for advice and Mrs Burke’s contentions.  The risk of a multiplicity of proceedings could and should have been avoided. 

3.Issues such as whether Mrs Burke could prove that Lady Badger had expressed an intention, or a changed intention, in favour of Mr Burke in 2016, and whether that established a half-secret trust in favour of Mr Burke and ultimately Mrs Burke, were not unarguable and were appropriate for final determination.

4.Having regard to the breadth of the jurisdiction available to the court under ss 69(4) and 69(6) of the Act, the contested issues of fact and law raised by the Public Trustee and Mrs Burke should have been made the subject of a binding determination.

5.Observations made regarding three categories of case under s 69 of the Act and when parties should be heard on an application or joined to facilitate determinations of fact or law inter partes.

Administration and Probate Act 1891 (SA) ss 91, 99; Administration and Probate Act 1919 (SA) ss 69, 72B; Civil Procedure Rules 1998 UK pt 64; Corporations Act 2001 (Cth) ss 479(3), 600K, sch 2; Corporations Law (Cth) s 479(3); Judicial Trustees Act 1896 UK (59 & 60 Vict, c 35) s 3; Law of Property Amendment Act 1859 (UK) (22 & 23 Vict, c 35) s 30; Law of property Amendment Act 1860 (UK) (23 & 24 Vict) c 38) s 9; Legal Practitioners Act 1981 (SA) ss 44, 47; Property Act 1860 (SA) s 25; Public Trustee Act 1880 (SA) ss 28, 29; Public Trustee Act 1995 (SA) s 9; Rules of the Supreme Court 1883 (UK) ord 55 r 3; Rules of the Supreme Court 1965 (UK) ord 85 r 2; Supreme Court (General Civil Procedure) Rules 2005 (Vic) rr 54.02, 54.04; Supreme Court Act 1935 (SA) ss 27, 40, 49; Supreme Court Act 1970 (NSW) ss 22, 23; Supreme Court Civil Rules 2006 (SA) r 74(1); Supreme Court Rules 1893 (SA) ord 73; Supreme Court Rules 1947 (SA) ord 55; Supreme Court Rules 1987 (SA) rr 63.04, 103; Supreme Court Rules 2006 (SA) r 206; Trustee Act 1893 (SA) ss 22, 78; Trustee Act 1893 (UK) (56 & 57 Vict, c 53) s 51; Trustee Act 1925 (ACT) s 63; Trustee Act 1925 (NSW) s 63; Trustee Act 1936 (SA) ss 29,25, 56, 91; Trustee Act 1962 (WA) ss 92, 95; Trusts Act 1973 (Qld) ss 96, 97; Uniform Civil Rules 2020 (SA) rr 22.1, 214.6, 218.17, 232.2, referred to.
Adair v Shaw (1803) 1 Sch & Lef 243; Adsett v Berlouis (1992) 37 FCR 201; Ashby v Slipper (2014) 219 FCR 322; Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38; Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; Beck v Henley [2014] NSWCA 201; Bective v Federal Commissioner of Taxation (1932) 47 CLR 417; Blackwell v Blackwell [1929] AC 318; Blue Sky Private Equity Ltd v Crawford Giles Pty Ltd [2012] SASC 28; Brown v Willoughby [2012] WASC 20; Bull v The Queen (2000) 201 CLR 443; Caldwell v Public Trustee (1983) 33 SASR 246; CDJ v VAJ (No 1) (1998) 197 CLR 172; Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361; Collex Waste Management Services Pty Ltd v The Corporation of the City of Enfield (No 2) [2000] SASC 140; Commonwealth v Construction, Forestry, Mining & Energy Union (2000) 171 ALR 379; Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417; Dixon v White (Supreme Court of NSW, Holland J, 14 April 1982) ; Duggan v White [2018] NSWSC 364; Equity Trustees Wealth Services Ltd v Wedge [2021] SASC 80; Federal Commissioner of Taxation v Thomas (2018) 264 CLR 382; Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2011] FCAFC 89; Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher & Barnet (as liquidators of Octaviar Administration Pty Ltd (in liq) (2015) 89 NSWLR 110; Gardiner v Hughes (2017) 54 VR 394; Gardiner v Hughes [2017] VSCA 167; Gray v Guardian Trust Australia Ltd [2003] NSWSC 704; Guest v Webb [1965] VR 427; Hall v Carney (No 3) [2021] SASCA 37; His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; In re McBride [2019] SASC 204; In the Estate of Badger (deceased) [2021] SASC 25; In the Estate of Hunter [1957] SASR 194; In the Estate of Martin [1958] SASR 365; JN Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432; Kipping v Ash (1845) 1 Rob Ecc 270; Kirsten v Miller [2020] SASCFC 129; Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532; Letten v Templeton [2014] FCAFC 131; Lottwo Pty Ltd v Tudo [2012] SASC 172; Macedonian Orthodox Community Church St Petka Inc v Diocesan Bishop of Macedonian Orthodox Church of Australia and New Zealand (2006) 66 NSWLR 112; Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198; Martin v Hayward [1908] SALR 187; McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623; Morice v Bishop of Durham (1805) 10 Ves Jr 522; Ocsalt Pty Ltd v Minister for Mineral Resources & Energy [2012] SASC 67; OneSteel Manufacturing Pty Ltd v Environment Protection Authority (2005) 92 SASR 67; Ong v Lottwo Pty Ltd (2013) 116 SASR 280; Ottoway v Norman [1972] 2 Ch 698; Owners of Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404; Pitt v Environment Resources and Development Court (1995) 66 SASR 274; PJ Nash Pty Ltd v Food and Beverage Australia Limited [2021] SASCA 86; Public Trustee v Gecker (Supreme Court of NSW, Holland J, 14 April 1982); Public Trustee v O’Donnell (2008) 101 SASR 228; Randall v Randall [2016] EWCA Civ 494; Rawstron v Freud [2014] EWHC 2577 (Ch); Re Australian Motors SA Pty Ltd Staff Superannuation Fund [2010] SASC 62; Re Beckbessinger [1993] 2 NZLR 362; Re Beddoe; Downes v Cottam [1893] 1 Ch 547; Re Brown; Ward v Lawler [1944] Ir R 90; Re Cockell [2016] NSWSC 349; Re Cooper [1939] 1 Ch 811; Re Culina [2004] NSWSC 504; Re Devoy [1943] St R Qd 137; Re Duncan [1939] VLR 355; Re Earl of Radnor’s Will Trusts (1890) 45 ChD 402; Re Egan [1963] VR 318; Re Fleetwood; Sidgreaves v Brewer (1880) 15 Ch D 594; Re Furness (deceased); Wilson v Kenmare [1943] Ch 415; Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674; Re Gillard [1949] VLR 378; Re Grose [1949] SASR 55; Re Heyward [2010] SASC 247; Re IOOF Australia Trustees and the Trustee Act 1936 [1999] SASC 461; Re IOOF Australia Trustees Ltd and the Australian Tourist Property Trust [1999] 75 SASR 290; Re Jackson [1944] SASR 82; Re Keen; Evershed v Griffiths [1937] Ch 236; Re Kouvakas [2014] NSWSC 786; Re Macedonian Orthodox Community Church St Petka Inc (No 2) (2005) 63 NSWLR 441; Re MacGillivray [1946] 2 All ER 302; Re Magarey Farlam Lawyers Trust Accounts (2007) 99 SASR 40; Re Magarey Farlam Lawyers Trust Accounts (No 2) (2006) 96 SASR 323; Re Magarey Farlam Lawyers Trust Accounts (No 3) (2007) 96 SASR 337; Re Markham; Markham v Markham (1880) 16 Ch 1; Re Muggeridge’s Trusts (1860) 70 ER 569; Re Paulin [1950] VR 462; Re Pegasus Securities Ltd (1999) 74 SASR 396; Re Rees; Williams v Hopkins [1950] Ch 204; Re Ruxton [1946] VLR 334; Re Seymour [1934] VLR 136; Re Tulley; Mackay v Jackson [1918] VLR 556; Re Watson; Raitman v Ivey [2017] VSC 322; Return to Work Corporation of South Australia v BI (Contracting) Pty Ltd [2022] SASCA 49; Roland v Morgan (1848) 13 Jur 23; Russell v Russell (1976) 134 CLR 495; Salmi v Sinivuori [2008] QSC 321; Sunlight Nominees Pty Ltd v Zotti [2019] SASCFC 11; Tschirn v Australian Executor Trustees Ltd [2016] SASC 149; Smith v Smith (1861) 1 Drew & Sm 384; Sudgen v Lord St Leonards (1876) 1 PD 154; Tobin v Ezekiel (2011) 83 NSWLR 757; Underwood v Hatton (1842) 5 Beav 36; Van Wyk v Albon [2011] VSC 120; Voges v Monaghan (1954) 94 CLR 231; Walton v The Queen (1989) 166 CLR 283; Weiss v The Queen (2005) 224 CLR 300; Woodward v Goulstone (1886) 11 App Cas 469; Yule v Irwin (No 2) [2016] SASC 178, considered.

BURKE v PUBLIC TRUSTEE FOR THE STATE OF SOUTH AUSTRALIA
[2022] SASCA 64

LIVESEY P:

Introduction

1. On 24 July 2020, the Public Trustee for the State of South Australia (the Public Trustee) applied for “advice or direction” concerning the estate of Lady Edith Maud Badger OAM (Lady Badger) who died on 24 November 2016 aged 100. 

2. The application was made pursuant to s 69(1) of the Administration and Probate Act 1919 (SA) (the Administration and Probate Act) and heard ex parte on 17 August 2020.  The Public Trustee was in “difficulty or doubt” regarding the construction of Lady Badger’s last will (the 2012 will) and in consequence, regarding the distribution of her estate.  Mr Richard Burke (Mr Burke) prepared the 2012 will and is described in it as Lady Badger’s friend.  He died on 29 December 2016. 

3. Mr Burke’s widow is the appellant, Mrs Carolyn Burke (Mrs Burke).  She gave evidence in August 2020 at the request of the Public Trustee, but she was not then legally represented.[1] 

   [1]     See the reasons of the primary judge, In the Estate of Badger (deceased) [2021] SASC 25, [125] (Bampton J).

4. After the primary judge reserved her decision, on 12 November 2020 Mrs Burke applied to be joined.  A written application was not made until 22 February 2021, supported by an affidavit affirmed by Mrs Burke on 11 December 2020.  Mrs Burke wished to put an alternative construction regarding the 2012 will and she asserted that she had an interest in Lady Badger’s estate.  Mrs Burke contended that she should be joined so as to permit her to adduce evidence and to make full submissions regarding the construction of the 2012 will and the distribution of the estate.[2] 

   [2]     In the Estate of Badger (deceased) [2021] SASC 25, [8] (Bampton J).

5. On 25 February 2021, Mrs Burke’s joinder application was heard, with the benefit of affidavit evidence from Mrs Burke’s solicitor, which exhibited documents and recited certain of Mrs Burke’s instructions.  Mrs Burke’s case was ultimately that, during 2016, Lady Badger learned that Mr Burke was gravely ill and so she decided to leave her estate to Mr Burke.  Mrs Burke said that this was conveyed by Lady Badger to Mr Burke, and she relied on a conversation she had with Mr Burke about this before his death in December 2016, and a note made by an officer of the Public Trustee, Mr Keith Sinkinson, to whom Mrs Burke spoke about that conversation in the first half of 2017 (the Sinkinson note).[3] 

   [3]     In the Estate of Badger (deceased) [2021] SASC 25, [7]-[9], [124] (Bampton J).

6. The primary judge was, understandably, troubled that this case was not made clear until the eve of the hearing in February 2021,[4] and Mrs Burke’s counsel declined an adjournment so that further evidence could be filed.

   [4]     In the Estate of Badger (deceased) [2021] SASC 25, [125] (Bampton J).

7. At the conclusion to the 25 February 2021 joinder hearing the primary judge ruled that, on the proper construction of the 2012 will, Lady Badger’s estate was given to Mr Burke as the trustee of a half-secret trust because clause 1 of the 2012 will disclosed the existence of a trust but not the beneficial objects of that trust. 

8. The primary judge dismissed Mrs Burke’s application for joinder, finding she had no interest in the proper construction of the 2012 will, nor the application for advice or direction more generally. Reasons were published on 12 March 2021.[5]

   [5]     In the Estate of Badger (deceased) [2021] SASC 25, [11] (Bampton J).

9. Mrs Burke now appeals against the refusal to order joinder, raising a number of appeal grounds, most of which it is not necessary to address. 

10. As will be seen, this appeal can be determined by reference to a handful of the contested questions of fact and law raised on the Public Trustee’s ex parte application for advice or direction and Mrs Burke’s joinder application, and by having regard to the breadth of the power provided to the court by s 69 of the Administration and Probate Act and under the rules of court to enable a binding determination to be made inter partes.

11. For the reasons that follow, joinder should have been permitted to enable contested questions of fact and law to be determined at a trial in a way that bound the Public Trustee, Mrs Burke and any other interested parties, and which ensured that the distribution of the estate would not face the risk of further litigation.  Notwithstanding the unsatisfactory way in which these issues were addressed by the protagonists before the primary judge, the appeal should be allowed. 

12. These reasons are set out as follows:

    The application for advice or direction concerning the 2012 will

    The determination of the application for joinder by the primary judge

    The test for standing and joinder

    The balance of these reasons: issues were not unarguable and s 69 of the Administration and Probate Act

    The Memorial Arrangements document

    Dealings between Mrs Burke and the Public Trustee

    The concept of a half-secret trust

    Admissible evidence of Lady Badger’s wishes?

    Section 69 of the Administration and Probate Act 1919 (SA)

    The breadth of s 69 of the Administration and Probate Act

    Decisions concerning s 69 of the Administration and Probate Act 1919 (SA)

    Applications for advice or direction in other contexts

    The High Court - Macedonian Church

    Joinder should have been permitted

    The application to adduce further evidence on appeal

    Conclusions

    The application for advice or direction concerning the 2012 will

1. The Public Trustee sought advice or direction regarding Lady Badger’s 2012 will, which is in the following terms:

   THIS IS THE LAST WILL AND TESTAMENT of me EDITH MAUD BADGER of Apartment […] L’Estrange Street Glenside in the State of South Australia Widow AND I REVOKE all my former testamentary dispositions.

   1.I APPOINT my friend RICHARD DAVID BURKE Estates Manager of […] Stirling South Australia my sole executor and trustee and I GIVE the whole of my estate to him that he shall distribute the same as he shall know to be in accordance with my wishes.

   2.I DIRECT my executor to pay my debts, funeral and testamentary expenses and any duty or tax payable in consequence of my death from the my estate, with no subsequent apportionment between any beneficiaries.

   3.I EMPOWER my trustee:

   (a)     TO SELL, postpone sale, borrow with or without security, lease, accept surrenders of leases, repair, manage, exchange, appropriate in specie, partition or otherwise deal with respect to any part of my estate, for such purpose, at such time or times, on such terms and conditions, and with such determination of value, as my trustee thinks fit.

   (b)     TO RETAIN any investments held by me at my death AND TO INVEST any part of my estate requiring investment in such existing or future forms of investment and whether a wasting, hazardous or reversionary nature or not, as my trustee from time to time thinks fit, with power to vary or transpose the same.

   4.I DIRECT that my remains be cremated and I EXPRESS THE WISH that my ashes and those my late husband, Geoffrey Malcolm Badger be scattered in the valleys and over the cliffs of the Na Pali Coast off the Island of Kauai in the State of Hawaii.

2. The Public Trustee was concerned about the proper construction of clause 1, as well as the manner in which the estate should be distributed. 

3. As is common on an originating application seeking advice or direction from the court pursuant to s 69 of the Administration and Probate Act, the Public Trustee proceeded ex parte.  She relied on various affidavits which laid out for the benefit of the court the results of investigations she or her officers and solicitors had made, including inquiries made with Mrs Burke as part of an extensive search for relevant documents.  Various of the persons with an apparent interest in the estate were served with the proceedings, including Mrs Burke.  She was invited to obtain legal advice if she wished to make submissions regarding the construction of the will, but she declined that opportunity, telling the primary judge that she would leave “things in your hands”.[6]

   [6]     T2-3, 17 August 2020.

4. Mrs Burke gave evidence, explaining the limits of her understanding regarding the source and location of various documents held by her husband, as well as why she should travel to Hawaii to scatter the ashes of Lady Badger and those of her late husband, Sir Geoffrey Malcolm Badger (Sir Geoffrey).  

5. The Public Trustee, through her senior counsel, outlined two possible approaches to the question of construction presented for advice.  The first was that the 2008 letter of expression of wishes applied to the 2012 will and the second was that there was no expression of wishes referable to the 2012 will, in which case the trust failed and the trustee held the property for those entitled to the residue or the next of kin on intestacy.  As there was no residuary clause, and as the Public Trustee had not yet located any relatives of Lady Badger in the United Kingdom, the likelihood was that the estate would revert to the Crown.  

6. Given the modest size of the estate, less than $600,000, it was submitted that Public Trustee could address both arguments, leaving it for the court to determine the question of construction.  Alternatively, a solicitor could be retained to appoint counsel to present arguments as contradictor on behalf of the next of kin as a class.  Ultimately the application for advice or direction proceeded without a contradictor.[7]

   [7]     T5-8, 14 August 2020; T4, 17 August 2020.

7. The evidence placed before the court by the Public Trustee showed that Mr Burke, who had been employed by the law firm Finlaysons as a manager in wills and estates,[8] had been assisting Lady Badger for some years.  His assistance included facilitating the preparation of wills, powers of attorney and letters of expression of wishes for Lady Badger, together with managing her money market account, paying accounts and providing or arranging what were described in the evidence as “comforts” for Lady Badger.[9]  These “comforts” appeared to comprise monies incurred from time to time by Lady Badger.  Mr Burke’s assistance became particularly important after Lady Badger developed macular degeneration and had trouble with reading.

   [8]     In the Estate of Badger (deceased) [2021] SASC 25, [14] (Bampton J).

   [9]     In the Estate of Badger (deceased) [2021] SASC 25, [12]-[13] (Bampton J).

8. The evidence demonstrated that Mr Burke, on instructions from Lady Badger, had drawn a 2007 will together with a letter of expression of wishes and, later in 2008, he drew a revised letter of expression of wishes for Lady Badger.[10]  The 2008 letter of expression of wishes was in the following terms:

   [10]   In the Estate of Badger (deceased) [2021] SASC 25, [29]-[32] (Bampton J).

   THE EXECUTORS OF THE WILL

   of the estate of

   LADY EDITH MAUD BADGER DECEASED

   LETTER OF EXPRESSION OF WISHES

   For the help and guidance of my executors and trustees, I have enumerated below the actions I request my executors and trustees take during the administration of the trusts of my will dated the 23^rd day of April 2007.

   The purpose of my request is not to fetter the discretion given to my executors and trustees but afford them guidance in the way I wish them to exercise their discretion.

   Gifts of My Estate

   1.RELEASE my wearing apparel to Mrs Faye Willis if she survives me but if she dies before me, then my wearing apparel is to be released and distributed to THE SMITH FAMILY, a charitable organisation.

   2.PROVIDE for the following:

   2.1    set aside a Fund, the income from which will provide an annual scholarship of $5,000 to a student of the Chemistry Department of the University of Adelaide (School of Organic Chemistry) for a period of up to 10 years from my death to be called the “Sir Geoffrey Malcolm Badger Memorial Scholarship Gift”.

   2.2    set aside an amount no greater than $400,000 to provide for the cost of a dwelling house, apartment or, flat for DEBRA ANN WOODS and, of her choosing allowing her absolute independence and security for the remainder of her lifetime.

   2.3    pay $50,000 for DAVID CHRISTOPHER JOHN WOODS.

   2.4    pay $50,000 for JAMES RUPERT EDWARD WOODS.

   2.5    pay $30,000 for SUE GIACOBBE to be used as a deposit on a house, apartment or, flat of her choosing.

   2.6    pay $10,000 for KEVIN JOHN WOODS.

   2.7    pay $10,000 for NARISSA SCHUSTER.

   3.PAY AND TRANSFER the residue of my estate as follows –

   3.1    $5,000 for QUEEN ADELAIDE CLUB; and

   3.2    such other organisations and charitable institutions in such amounts and shares as my executors and trustees in their absolute discretion think fit and whether income or capital or both, including, but not limited to, the following:

   ·THE QUEEN ELIZABETH HOSPITAL RESEARCH FOUNDATION;

   ·MUSCULAR DYSTROPHY ASSOCIATION INC.;

   ·MACULAR DEGENERATION FOUNDATION;

   ·ST. PETER’S CATHEDRAL MUSIC FOUNDATION INC.;

   ·THE CANCER COUNCIL SOUTH AUSTRALIA;

   ·THE ART GALLERY OF SOUTH AUSTRALIA;

   ·THE SPINA BIFIDA & HYDROCEPHALUS ASSOCIATION OF SOUTH AUSTRALIA INCORPORATED;

   ·MATER CHILDREN’S HOSPITAL;

   ·PHOENIX SOCIETY INC.;

   ·AUSTRALIAN RED CROSS;

   ·THE AUSTRALIAN BALLET SCHOOL;

   ·AUSTRALIAN KIDNEY FOUNDATION;

   ·ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SA);

   ·BARNARDOS AUSTRALIA;

   ·BLIND WELFARE ASSOCIATION OF SA INCORPORATED;

   ·COMPASSION AUSTRALIA;

   ·ANGLICARE SA;

   ·MEDICINS SANS FRONTIERES;

   ·ANIMAL WELFARE LEAGUE OF SOUTH AUSTRALIA;

   ·ALZHEIMER’S AUSTRALIA SA;

   ·R D N S FOUNDATION;

   ·ONCOLOGY CHILDREN’S FOUNDATION;

   ·ENFIELD COMMUNITY FOOD CENTRE;

   ·ROYAL FLYING DOCTOR SERVICE OF AUSTRALIA;

   ·ASTHMA FOUNDATION SA;

   ·THE EPILEPSY CENTRE;

   ·ADELAIDE BOTANIC GARDENS;

   ·STATE THEATRE COMPANY OF SOUTH AUSTRALIA; and

   ·THE MULTIPLE SCLEROSIS SOCIETY OF SA & NT.

   without any obligation to ensure equality amongst those organisations, institutions and charities to which payments are made.

   I DECLARE the receipt of the secretary or other authorised officer for the time being for each organisation, institution and charity nominated by my trustees for its respective benefit shall be a sufficient discharge to my trustees who shall not be bound to see to the application of such gifts.

   In my desire for privacy it is my express request that my executors and trustees ensure the contents of this my letter of expression of wishes remains confidential at all times.

   DATED the  day of  2008.

   EDITH MAUD BADGER

9. The primary judge found that the 2007 will was very similar to the 2012 will, and that clause 2 of the 2007 will was identical in effect to clause 1 of the 2012 will, save that the 2007 will referred to both Mr Tarca (a solicitor at Finlaysons) and Mr Burke as executors and trustees, whereas the 2012 will referred only to Mr Burke as executor and trustee.[11] 

   [11]   In the Estate of Badger (deceased) [2021] SASC 25, [79]-[80] (Bampton J).

10. The letters of expression of wishes demonstrated that Lady Badger desired privacy.  Both the 2007 and 2008 letters contained the express request that Lady Badger’s executors and trustees must “ensure the contents of this my letter of expression of wishes remains confidential at all times”.[12] 

    [12]   In the Estate of Badger (deceased) [2021] SASC 25, [31]-[32] (Bampton J). Regrettably it is necessary to set out these documents so as to illustrate the contentions made.

11. This case raises what is described in the authorities as “a half-secret trust”: that is, the fact of the trust is disclosed in the will but the beneficial objects are not disclosed in the will and are, instead, separately disclosed to the trustee.[13]  The primary judge found that clause 2 of the 2007 will and clause 1 of the 2012 will each created half-secret trusts.  In this case, the 2007 and 2008 letters of expression of wishes each referred to the 2007 will.[14]  By these letters the disclosures of Lady Badger’s beneficial objects were made to Mr Tarca and Mr Burke, as executors and trustees under the 2007 will. 

    [13]   CH Sherrin et al, Williams on Wills (LexisNexis Butterworths UK, 9^th ed, 2013) vol 1, [36.10]; Rawstron v Freud [2014] EWHC 2577 (Ch), [15]-[33] (Spearman QC).

    [14]   In the Estate of Badger (deceased) [2021] SASC 25, [31] (Bampton J).

12. The evidence before the court showed that on 16 July 2012 Lady Badger collected the contents of her Finlaysons deed packet containing the 2007 will and the unsigned 2008 letter of expression of wishes.  On the same day, she made the 2012 will, revoked an enduring power of attorney given in 2001 to Mr Tarca and Mr Burke, and executed a new deed of enduring power of attorney appointing Mr Burke as sole donee.[15]   She also made a “Memorial Arrangements” document. 

    [15]   In the Estate of Badger (deceased) [2021] SASC 25, [39]-[40] (Bampton J).

13. The dilemma confronting the Public Trustee was that, though the evidence disclosed a 2008 letter of expression of wishes that referred to the 2007 will, there was no evidence of a later letter of expression of wishes that referred to the 2012 will. 

14. Accordingly, if the 2008 letter of expression of wishes was not referable to the 2012 will, and if what Lady Badger intended under the 2012 will is not known because Mr Burke had since died and made no lasting record of her wishes, there is no “certainty of object” and the half-secret trust failed, with the trustee holding the property for those entitled to the residue or the next of kin on intestacy.[16]  In this case, the 2012 will contained no residuary clause. 

    [16]   See Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532 (Ledgerwood); CH Sherrin et al, Williams on Wills (LexisNexis Butterworths UK, 9^th ed, 2013) vol 1, [36.10]; Rawstron v Freud [2014] EWHC 2577 (Ch).

15. Ultimately the primary judge made the factual finding that the 2008 letter of expression of wishes applied to the 2012 will, even though it made no reference to the 2012 will and only referred to the 2007 will.  I will return to that finding. 

16. On this basis the primary judge gave advice or direction to the Public Trustee that she was “justified in distributing [Lady Badger’s] estate as proposed in her originating application”, which accorded with the unsigned 2008 letter of expression of wishes.[17]  The primary judge sought further submissions regarding the scattering of the ashes of Lady Badger and Sir Geoffrey.[18]

    [17]   In the Estate of Badger (deceased) [2021] SASC 25, [136] (Bampton J).

    [18]  In the Estate of Badger (deceased) [2021] SASC 25, [137] (Bampton J).

    The determination of the application for joinder by the primary judge

17. After the judge had reserved her decision on the s 69 application, senior counsel for Mrs Burke appeared on 12 November 2020, foreshadowing an application that Mrs Burke be “joined as a respondent” on the basis that she had a “proper interest”.[19]  It was submitted that it was necessary to put a third approach to the 2012 will, being that Mr Richard Burke should receive the entirety of the estate of Lady Badger.[20]  This was described by counsel for the Public Trustee as a “change of position”.[21]

    [19]   T2.3-T2.6, 12 November 2020.

    [20]   T6.1-6.7; T6.29-6.32, 12 November 2020.

    [21]   T16.33-16.34, 12 November 2020.

18. Whilst it may be that Mrs Burke simply wished to be heard on the s 69 application, rather than joined as a party to it, both sides proceeded on the basis that she could be joined to the s 69 application provided she had demonstrated a reasonably arguable interest.[22] 

    [22]   T21, T24, 21 December 2020 (Ower QC for the Public Trustee). T2, T18, 25 February 2021 (M L Abbott QC for Mrs Burke).

19. Indeed, Mrs Burke made it clear that she sought joinder so that she could “fully put” her evidence and submissions, so that the issues, including the question of construction, could then “be determined” by the court.[23]  Whilst the Public Trustee opposed joinder, pointing to Mrs Burke’s delay in articulating her case and the inadequate evidence offered in support of it, the alternative submission was that there should be joinder and the matter adjourned, with Mrs Burke directed to file her affidavit regarding “the secret wishes” and her counsel directed to make his argument on “legal construction” so that the matter could be dealt with “relatively promptly within the space of a couple of hours”.[24]  

    [23]   T15-17, 25 February 2021 (M L Abbott QC for Mrs Burke).

    [24]   T41, 25 February 2021 (Ower QC for the Public Trustee).

20. At the conclusion to the 25 February 2021 hearing the primary judge announced her decision, refusing joinder.

21. There were, essentially, three limbs to the reasoning of the primary judge for refusing joinder.[25]  First, the judge found that the 2012 will created a valid

    
    

    half-secret trust of which Mr Burke was the trustee.  That was a finding made about the proper construction of the 2012 will.[26]  The reasons show that that finding was made with the benefit of, and by rejecting, various of the contentions made by counsel for Mrs Burke in support of joinder, a number of which were repeated or recast in this Court.  It was a finding that probably entailed the assumption that, at the time of the 2012 will, there had been some form of expression of wishes to Mr Burke.  Were it otherwise, the half-secret trust may not have come into existence.

    [25]   In her reasons delivered on 12 March 2021, In the Estate of Badger (deceased) [2021] SASC 25.

    [26]   In the Estate of Badger (deceased) [2021] SASC 25, [77], [107] (Bampton J).

22. Secondly, the court found that Lady Badger had never disclosed any wishes regarding the disposition of her estate to Mr Burke after the 2008 letter of expression of wishes, particularly, at or from the time of the making of the 2012 will until her death in November 2016.[27]  Given the ultimate finding, that there was a valid half-secret trust to which the 2008 letter of expression of wishes applied, this finding should probably be understood as accommodating some form of disclosure before or at the time of the making of the 2012 will.

    [27]   In the Estate of Badger (deceased) [2021] SASC 25, [120], [122], [128], [131] (Bampton J).

23. In arriving at this finding, the primary judge made a number of subsidiary findings, essentially findings of fact.  These were that Mrs Burke’s evidence about Lady Badger’s oral wishes, as revealed in the Sinkinson note prepared in 2017 and found in the Public Trustee’s file, was “untenable” and “not reasonably arguable”.[28]  This finding was supported by the further finding that, because Lady Badger “engaged in prudent will-making”, it was both “unlikely” and “against the weight of the evidence” that Lady Badger conveyed any wishes to Mr Burke orally,[29] because if she had done so Mr Burke would have kept a record and no record has been found.[30] 

    [28]   In the Estate of Badger (deceased) [2021] SASC 25, [127] (Bampton J).

    [29]   In the Estate of Badger (deceased) [2021] SASC 25, [120] (Bampton J).

    [30]   In the Estate of Badger (deceased) [2021] SASC 25, [122] (Bampton J).

24. In fact, no document at all has been found explicitly addressing the expression of Lady Badger’s wishes concerning the 2012 will.  For example, there is no note confirming that her wishes in 2012 remained as they were in 2008.  That seems very unusual.  One might well have expected some form of note or letter from a prudent will-maker such as Lady Badger and from a competent, prudent estates manager such as Mr Burke.  Indeed, there may have been a note or another letter in 2012 but it has now been lost.  The possible explanations for this state of the evidence may be bound up in Lady Badger’s advanced age and macular degeneration, Mr Burke’s departure from full-time work at Finlaysons, and later, the way in which documents held in Lady Badger’s accommodation were removed and the course of Mr Burke’s serious illness during 2016. 

25. The primary judge found that, if after Lady Badger learned of Mr Burke’s illness she had said she wished to leave her estate to him, a “prudent, ethical estates manager in the position of Mr Burke” would have referred Lady Badger for “independent legal advice and will preparation” but there was no evidence of any referral.[31]

    [31]   In the Estate of Badger (deceased) [2021] SASC 25, [123] (Bampton J).

26. Thirdly, the primary judge found that in the absence of any evidence of written wishes concerning the 2012 will, the unsigned copy of the 2008 letter of expression of wishes, which did not relevantly include Mr or Mrs Burke as beneficiaries, contained the wishes that Lady Badger intended would apply to her 2012 will and these had not been replaced by any subsequent wishes, particularly any oral wishes disclosed to Mr Burke:[32]

    The assertion of the purported expression of wish [in the Sinkinson note of 2017] is untenable and the matters deposed to in Mr Abbott’s affidavit of 22 February 2021 [regarding Mrs Burke’s instructions] are not reasonably arguable to justify an order for joinder of Mrs Burke to the Public Trustee’s application.  Mrs Burke has no interest in making submissions in relation to the half secret trust or its beneficial objects.  If the half secret trust fails, [Lady Badger’s] estate does not go to Mrs Burke but on an intestacy.

    …

    Having considered the evidence before the Court, I am satisfied that when [Lady Badger] made the 2012 will her wishes were the same as those recorded in the 2008 [letter of expression of wishes] signed by her.  There is no tenable evidence before the Court to suggest those wishes were later replaced by [Lady Badger]. 

    I am satisfied that the half secret trust in the 2012 will is not void for uncertainty and the objects of the gift in it are defined in the 2008 [letter of expression of wishes]. 

    Mrs Burke has no interest in making submissions regarding the identities of the beneficial objects of the half secret trust as she has no interest in [Lady Badger’s] estate.  The only evidence of a gift to Mr Burke and/or to Mrs Burke by [Lady Badger] is in the context of the Memorial Arrangement document.  It is untenable to suggest that Mr Burke or Mrs Burke are entitled to receive the estate beneficially.  Accordingly, Mrs Burke’s application for joinder to make submissions on whether the trust was a secret or half secret trust question was refused.  I also refuse her application to make submissions regarding the identity of the beneficial objects of the half secret trust.

    [32]   In the Estate of Badger (deceased) [2021] SASC 25, [127]-[133] (Bampton J).

1. These conclusions represent an admixture of findings made on the application for advice or direction, together with findings against giving Mrs Burke an opportunity to make submissions on that application as well as against joinder generally.

   The test for standing and joinder

2. It is at the outset necessary to distinguish between three categories of case under s 69 of the Administration and Probate Act.

3. The first is where the application for advice or direction proceeds ex parte and effectively in private.  The second category of case is where the court grants leave to a person with standing, being a sufficient interest to be heard, to make submissions on the application for advice or direction.  Under this category it is not necessary that those with standing be formally joined as parties.[33]  The outcome of both categories of case is that judicial advice is given to a trustee.  The advice or direction is not binding, but it secures protection for the trustee provided full disclosure has been made to the court by the trustee, and the trustee acts in accord with the advice or direction given.[34]

   [33]   Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 (Macedonian Church), [65] (Gummow ACJ, Kirby, Hayne and Heydon JJ): despite the “compromise” embodied in the “protections” afforded to persons whose interests may be affected by the advice, including the ability to participate to some extent, they do not become “strictly speaking ‘parties’” and the process remains one of “affording private advice to trustees”.

   [34]   See, for example, Public Trustee v O’Donnell(2008) 101 SASR 228, [25]-[30] (Gray J); In re McBride [2019] SASC 204, [12]-[16] (Stanley J).

4. The third category of case is one where the court determines to rule on questions of fact or law in a way that is binding.  Usually that is done on questions which have been framed by the trustee,[35] but it may arise out of the hearing of an application for advice or direction, or the way in which interested parties have approached the matters the subject of the application.

   [35]   See, for example, Equity Trustees Wealth Services Ltd v Wedge [2021] SASC 80, [1], [84]-[85] (Blue J).

5. It is in the context of a binding determination that the court will consider the proper form of the proceedings (including whether a new action is required or whether the application may simply be recast),[36] whether it is necessary to notify interested persons, whether it is necessary to join parties or appoint a contradictor or order representation by class or category, whether to require points of claim and defence or move to pleadings, whether to adduce evidence orally or in writing and whether it is necessary to proceed to a trial. These are simply examples of the kinds of matters that may be addressed as part of the flexible exercise of the broad jurisdiction available under s 69 and, if necessary, the rules of court to enable a determination of contested issues of fact or law to be made inter partes.

   [36]   Re Magarey Farlam Lawyers Trust Accounts (No 2) (2006) 96 SASR 323 (Magarey Farlam). (Debelle J); and on appeal, Re Magarey Farlam Lawyers Trust Accounts (2007) 99 SASR 40 (White J, with whom Nyland and Kelly JJ agreed); Re Magarey Farlam Lawyers Trust Accounts (No 3) (2007) 96 SASR 337 (the determination made).

6. It is always necessary to keep firmly in mind the category of case before the court so that what is expected of the court, and whether what is decided is binding, is clearly understood.  This case demonstrates the difficulty and danger associated with a late application in which the case for the applicant, and the purpose of joinder, has not been clearly explained or perhaps understood. 

7. The need for clarity may become particularly acute where, at times, a hearing may move between two or more categories of case. For example, an application for advice or direction under s 69(1) may raise the construction of the trust deed, as well as whether a trustee is justified in prosecuting or defending litigation. On the first part of the application, it may be appropriate to hear from those with a sufficient interest, such as beneficiaries.

8. However the second part of the application is what is often described as a Re Beddoe application.[37]  The Re Beddoe procedure provides protection for the trustee who would otherwise litigate at the trustee’s own risk on costs.[38] As Lyons J explained in Salmi v Sinivuori,[39] a Re Beddoe order determines a potential issue between the trustee and the beneficiaries as to whether the costs of an action should be recoverable by the trustee as expenses of the trust.  There is no decision on the issue of costs as between the trustee and the other party to the action.  A trustee thereby protects the right of indemnity out of the trust assets in respect of the costs, charges and expenses incurred litigating, including any costs which the trustee may be ordered to pay to another party in the action.[40]

   [37]   Re Beddoe; Downes v Cottam [1893] 1 Ch 547, 562 (Bowen LJ, with whom Smith LJ agreed). As to whether the court should make an order regarding the costs to be incurred, see the decision of Palmer J in ReApplication of Macedonian Orthodox Community Church St Petka Inc (No 3) [2006] NSWSC 1247, [59]-[62], citing Sir Robert Megarry’s direction in ReDallaway (dec’d) [1982] 1 WLR 756, 761-762: “…subject to any order made by the trial judge, the bank will be entitled to be indemnified out of the estate for all costs for which it is liable, even if the defence or the counterclaim, or both, are unsuccessful.”

   [38]   Gray v Guardian Trust Australia Ltd [2003] NSWSC 704, [9] (Austin J).

   [39]   Salmi v Sinivuori [2008] QSC 321, [13] (Lyons J).

   [40]   Salmi v Sinivuori [2008] QSC 321, [13] (Lyons J). The way in which a trustee may be deprived of recourse to the indemnity, and the factors which it is relevant to consider, were addressed in the case of a trustee in bankruptcy in Adsett v Berlouis (1992) 37 FCR 201 (Northrop, Wilcox and Cooper JJ).

9. The practice usually adopted by the court involves aspects of the Re Beddoe hearing proceeding in private, for example when considering legal advice and submissions from or on behalf of the trustee about that advice, but at other times hearing from interested parties in open court:[41]

   An application for a Re Beddoe order must be made separately from the litigation in which the trustee is engaged and before a different judge.  The applications are usually supported by advice from a qualified lawyer as to the prospects of success as well as a costs estimate and evidence as to the value of the estate.

   The practice in Australia follows the English procedure which is that whilst the beneficiaries are served with a claim, neither the beneficiary against whom the trustees propose to litigate, nor those representing him, would normally be allowed to be present when the merits of the main action are discussed between the trustee’s counsel and the judge because they might hear something that they should not, given that it is about the strength or weakness of the trustee’s case.  Whilst the beneficiary and his counsel are allowed into the hearing to address any arguments they may wish, they must then withdraw while the matter is discussed between the trustee’s counsel and the judge.  The beneficiary’s counsel are then readmitted to be informed of the court’s decision.[42]  The basic principles of natural justice mean that material placed before the judge should be kept to a minimum.  In this regard, the respondents to the current application had the opportunity to put affidavit material before the court.

   (footnote omitted)

   [41]   Salmi v Sinivuori [2008] QSC 321, [14]-[15] (Lyons J).

   [42]   John Mowbray and Thomas Lewin, Lewin on Trusts, (Sweet & Maxwell, 18^th ed, 2008), 600.

10. This passage shows how an application under s 69 may move between the first two categories of case earlier described. One aspect remains private and the subject of advice from the court to the trustee, whereas those with a proper interest, which usually includes the beneficiaries, have been served and given notice of the application. That may lead to an opportunity to be heard and make submissions.

11. If the application remains concerned only with private advice, it is “rare for other parties to be heard at all before advice is actually given” and it would be “highly exceptional for the court to permit any other party to adduce evidence or to cross-examine” in the course of a procedure which is “essentially a request for the court’s private advice”.[43] If the application raises the proper construction of a trust instrument, interested parties are often heard,[44] and they may be permitted to lead relevant evidence even if the application remains one for advice or direction.

    [43]   Re Macedonian Orthodox Community Church St Petka Inc (No 2) (2005) 63 NSWLR 441, 447 (Palmer J).

    [44]   In the Estate of Martin [1958] SASR 365.

12. It must be emphasised that it is not usually necessary to formally join an interested person as a party where the application remains one for advice and direction.[45]  Joinder is usually only relevant where the court is being invited to make a binding determination inter partes, especially at the trial of an action. 

    [45]   Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, [65] (Gummow ACJ, Kirby, Hayne and Heydon JJ): the “protections” afforded to persons whose interests may be affected by the advice, do not extend to them becoming “strictly speaking parties.”

13. In this case, by asking whether Mrs Burke’s case was “arguable”,[46] and describing various contentions as “untenable”, it is clear that the protagonists and the primary judge invoked those authorities which are usually applied when considering the joinder of a party to inter partes litigation, that is, the third category of case earlier outlined. 

    [46]   In the Estate of Badger (deceased) [2021] SASC 25, [71] (Bampton J).

14. From time to time, the test for joinder to an action has been put as whether the applicant has shown a tenable, prima facie or arguable case which would warrant joinder to the action.[47]  Under the former rules of court, joinder could be ordered where the court was satisfied that a person had an interest in the subject matter of the action or in a question of law or fact involved in the action.[48]  The nature and strength of the proposed case, as well as the effect of joinder on the efficient and effective resolution of the litigation, are relevant considerations.[49]  An important consideration in the exercise of discretion regarding joinder is that a multiplicity of proceedings is to be avoided.[50]

    [47]   Lottwo Pty Ltd (in liq) v Tudo [2012] SASC 172, [43] (White J); on appeal Ong v Lottwo Pty Ltd (in liq) (2013) 116 SASR 280, [16], [50]-[53] (Nicholson J, with whom Kourakis CJ and Stanley J agreed).

    [48]   Supreme Court Civil Rules 2006 (SA) r 74(1)(a); cf, Uniform Civil Rules 2020 (SA) r 22.1.  No submissions were made about the difference between a “respondent” and an “interested party” under r  21.1.

    [49]   Pitt v Environment Resources and Development Court (1995) 66 SASR 274, 275-276 (Doyle CJ), 281-282 (Duggan J); OneSteel v Environment Protection Authority (2005) 92 SASR 67, 275-276 (Debelle J); Ocsalt v Minister [2012] SASC 67, [4]-[9] (Judge Lunn).

    [50]   JN Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432, 442 (King CJ, with whom Prior and Perry JJ agreed), see also Supreme Court Act 1935 (SA) s 27.

15. However in the probate jurisdiction, whether a person should be heard has been put in terms of whether the applicant has standing, which in turn is determined by whether the person has a “sufficient interest” in the proceeding.[51]  That approach was described in the following way by the Victorian Court of Appeal in Gardiner v Hughes:[52]

    Sufficiency of interest is established by showing that the applicant’s rights would or might be affected if the grant were to be revoked.[53]  The bare possibility of an interest will suffice.[54]

    [51]   Re Devoy [1943] St R Qd 137.

    [52]   Gardiner v Hughes (2017) 54 VR 394, [90] (McLeish JA, with whom Tate and Kyrou JJA agreed).

    [53]   Re Cockell [2016] NSWSC 349, [17] (Lindsay J); Re Kouvakas [2014] NSWSC 786, [212]-[217] (Lindsay J), probate litigation is “interest litigation”.

    [54]   Kipping v Ash (1845) 1 Rob Eccl 270; 163 ER 1035; Re Gillard [1949] VLR 378; Re Culina; Poulos v Pellicer [2004] NSWSC 504. See also Randall v Randall [2016] EWCA Civ 494.

16. As can be seen, that was a case concerning an application to revoke a grant of probate, not an application for advice or direction.  The parties on this appeal proceeded on the basis that those principles applied to Mrs Burke’s application for joinder and not merely to whether she might be heard on the application for advice or direction.  Whilst there is authority to support the proposition that beneficiaries are usually notified and heard on an application for advice,[55] each case must depend on its own particular circumstances and, principally, the nature and effect of the advice or direction sought.  In the first instance, it is for the applicant trustee to make an assessment as to whether the application should be made ex parte or on notice.[56]

    [55]   See Kirsten v Miller [2020] SASCFC 129, [16]-[19] (Kourakis CJ, Kelly and Blue JJ), where this proposition was found to be “sufficiently arguable … to warrant consideration by the Full Court”, citing Re Moritz [1960] Ch 251, 255 (Wynn-Parry J); Re Eaton [1964] 3 All ER 229, 230 (Wilberforce J); Smith v Croft [1986] 2 All ER 551, 558 (Walton J); Alsop Wilkinson v Neary [1996] 1 WLR 1220, 1226 (Lightman J); Craig v Humberclyde IndustrialFinance Group Ltd [1999] 1 WLR 129, 136 (Morritt LJ).

    [56]   In the Estate of Martin [1958] SASR 365, 380 (Piper AJ).

17. It is doubtful whether these tests are interchangeable, at least in the circumstances of this case.  If what Mrs Burke intended was that she be given an opportunity to be heard and lead evidence, the question was whether she had a sufficient interest to be accorded standing on the application for advice or direction.

18. Whilst whether Mrs Burke had standing was a relevant and important consideration when determining whether she should be joined as a party to a binding determination, the tests are not the same and joinder can raise broader considerations, especially where a contested trial is in prospect.  Those broader considerations are reflected in the authorities concerning joinder under r 22.1 of the Uniform Civil Rules 2020 (SA).

19. Though not directly applicable, the ruling of the Victorian Court of Appeal in Gardiner v Hughes illustrates that the test for standing cannot be confused with the tests applied in other contexts.  After an extensive and helpful review of the authorities the Court concluded in these terms:[57] 

    … very few of the cases are directly concerned with standing.  The cases which refer to a prima facie case requirement are either contested trials[58] or applications for summary disposition,[59] or are concerned with the requirements for permitting a matter to go to trial.[60]  References to the need for a prima facie case in those contexts are unsurprising, but they do not inform the question of standing.[61]

    [57]   Gardiner v Hughes (2017) 54 VR 394, [88] (McLeish JA, with whom Tate and Kyrou JJA agreed).

    [58]   Tobin v Ezekiel (2011) 83 NSWLR 757; Re Cockell [2016] NSWSC 349.

    [59]   Van Wyk v Albon [2011] VSC 120; Re Kouvakas [2014] NSWSC 786.

    [60]   Re Seymour [1934] VLR 136; Re Egan [1963] VR 318; Re Cockell [2016] NSWSC 349.

    [61]   Cf Re Watson; Raitman v Ivey [2017] VSC 322, [15] (McMillan J), setting out three threshold requirements on an application for revocation: standing, explanation for delay and a prima facie case. The judge dealt with the requirement of standing separately from the requirement for a prima facie case, [19], [24]-[45] (McMillan J).

20. The relevant question concerning standing was framed by the Victorian Court of Appeal as being whether the applicants in that case stood to benefit if their claims were upheld:[62]

    The question before the Court was not whether the claims should be summarily dismissed, nor had the Court required the applicant to show a prima facie case during the course of the proceedings, in the manner described above.  The preliminary question was confined to the issue of standing.  Because the applicants stood to benefit if the claims they made in their summons were upheld, they had standing to pursue that summons. 

    [62]   Gardiner v Hughes (2017) 54 VR 394, [94] (McLeish JA, with whom Tate and Kyrou JJA agreed).

21. It may be accepted that whether a person has a sufficient interest, or indeed the bare possibility of an interest, in the questions raised on an application for advice or direction, or indeed in the administration of the estate or the interpretation of the trust instrument more generally, may sometimes involve questions of fact and degree. The nature of the interest claimed is key. Ultimately, what is involved is an evaluation of the interest claimed and an exercise of discretion under s 69.

22. In most cases the interest may be obvious, for example where the person is a named beneficiary or is holding trust property.  In those cases it will often be convenient to allow those interested in the estate or its property to make submissions, for example, on the proper construction of the will or trust deed before the court.  That will usually be desirable where the practical effect of giving the advice or direction sought will affect financial or other interests, for example because the estate or trust assets will be wholly distributed or at least distributed in a particular way.[63] 

    [63]   In the Estate of Martin [1958] SASR 365, 379 (Piper AJ), “Ex parte proceedings … can rarely be appropriate when advice or direction is sought as to the final distribution of a substantial fund…Where large sums are at issue, and the question to be determined involves the final distribution of those sums, it appears that proceedings under [the rules of court] are more appropriate”.

23. Whether evidence should be received from an interested person raises additional considerations, and these will include whether the evidence is relevant to the issue on which the court is being asked to give advice or direction, as well as whether the evidence is likely to be contentious. 

24. The court has a broad discretion when determining how to proceed under an application for advice or direction made pursuant to s 69 of the Administration and Probate Act.  Whilst the court must be diligent to ensure that the expeditious administration of estates is not held up and complicated by unwarranted interference, [64] it must be equally alert to cases where the applicant trustee seeking advice or direction, or the interested persons, are in truth asking the court to resolve complex or disputed questions of fact or law, ill-suited to resolution on an application for advice or direction.

    [64]   From those without an interest, being “outside busybodies”, Re Culina; Poulos v Pellicar [2004] NSWSC 504, [10]-[17] (Windeyer J); Gardiner v Hughes (2017) 54 VR 394, [16] (McLeish JA, with whom Tate and Kyrou JJA agreed), “officious inter-meddlers”.

25. Beneficiaries or others with standing are not bound by ex parte advice.  Whether they are bound by advice given after they have had notice and an opportunity to be heard raises a question which was not addressed on this appeal.[65]  Advice or direction given with the benefit of submissions from beneficiaries or others with standing has not usually been regarded as binding anyone.[66]

    [65] The position in South Australia may be contrasted with s 63(11) of the Trustee Act 1925 (NSW), addressed in connection with the Macedonian Church case, below.

    [66]   In the Estate of Hunter [1957] SASR 194, 195-196 (Napier CJ), a case where almost all of the interested parties were before the court. Cf, In the Estate of Martin [1958] SASR 365, 380 (Piper AJ): “the advice and directions given under s 69 is not binding on absent parties and is primarily given for the protection of the trustees only” (emphasis added).  It may be that a party who has been heard but not joined is not strictly bound but subject to a form of estoppel or other preclusion.  It is not appropriate to address that issue on this appeal in the absence of submissions.

1. Whether the application should remain one for advice or direction, or transition to a binding determination, will turn on further considerations.  For example, a binding determination may be the appropriate course where there is a clear contest over difficult or complex issues of fact or law, where witnesses may be cross-examined and where it is desirable to avoid, or at least avoid the risk of, a multiplicity of actions.  It is in that context that the joinder of interested parties may arise for consideration.

   The balance of these reasons: issues were not unarguable and s 69 of the Administration and Probate Act

2. I will next address some of the facts as found by the primary judge before highlighting the issues which arise in this case and on which, in my opinion, Mrs Burke should have been heard, preferably following joinder in the context of a binding determination made under s 69 of the Administration and Probate Act and under the rules of court. 

3. These issues concern whether there can be an effective disclosure of wishes under a half-secret trust made after the making of a will, together with the extent to which Mrs Burke can prove by admissible evidence that her husband, Mr Burke, and in due course she, became beneficiaries under what amounted to a changed expression of wishes. 

4. These issues are considered on the assumption that there was a half-secret trust.  Whilst the primary judge was, with respect, probably correct to find that there was a half-secret trust it was not appropriate to finally rule on that issue without hearing from Mrs Burke.  In the circumstances, this appeal can be resolved without addressing the various construction contentions raised by Mrs Burke before the primary judge and on appeal, including as to whether Mr Burke was to take beneficially under a “hybrid” trust.

5. I will then address the way in which s 69 permits both an application for advice or direction as well as, generally by way of alternative, a binding determination or trial. The bifurcated nature of the jurisdiction under s 69 of the Administration and Probate Act, together with the rules of court, will be illustrated by reference to analogous situations in other statutory contexts where the courts have recognised the capacity, and at times the desirability, of proceeding by way of binding determination rather than merely advice or direction.

6. In addressing these matters, I do not determine any issue other than why joinder should have been ordered and a final determination made having regard to the breadth of the power available to the court under ss 69(4) and 69(6) of the Administration and Probate Act.  Rather, I will merely demonstrate how these issues are not unarguable and are appropriate for final determination.

   The Memorial Arrangements document

7. Together with the 2012 will and power of attorney, Mr Burke also prepared a “Memorial Arrangements” document.  This recorded the wish of Lady Badger that, following her death, her ashes and those of her late husband, Sir Geoffrey, were to be intermingled and conveyed to Hawaii. 

8. It was Lady Badger’s wish that Mr and Mrs Burke should take the ashes to Hawaii and, once there, their ashes were to be intermingled with frangipani and other sweet fragrant flowers of the Hawaiian Islands and then scattered in the valleys and over the cliffs of the Na Pali Coast of the Island of Kauai, just before sunset.  It was also Lady Badger’s wish that an amount of $30,000 was to be appropriated from her portfolio and set aside in an interest-bearing account named “The Badger Memorial Fund” to fund the expenses of Mr and Mrs Burke in travelling to Hawaii and carrying out her wishes, including first class airfares and a candle-lit dinner in the memory of Sir Geoffrey and Lady Badger. 

9. The Memorial Arrangements document concluded with the statement that the capital and income of the Badger Memorial Fund “is a gift to Richard and Carolyn Burke and is made freely and voluntarily and further, is made in contemplation of my death”. 

10. The evidence before the Court disclosed that Sir Geoffrey had been a Professor of Organic Chemistry and a former Vice Chancellor of the University of Adelaide who had later developed a keen interest in maritime navigation and edited a book about Captain James Cook.  Sir Geoffrey died in September 2002.  Captain Cook’s landing on the island of Kauai might explain what was proposed in the Memorial Arrangements document. 

11. Ultimately the Badger Memorial Fund was not set up, and in 2015 a $30,000 payment was made from one of Lady Badger’s accounts to another account, but the Public Trustee could not identify the identity of the owner of that account.[67]  Whether those monies went to an account controlled by Mr Burke, or ultimately benefitted Mrs Burke, were issues which were not addressed on the application for advice although, as has been seen, the primary judge sought assistance on what should be done with the ashes of Lady Burke and Sir Geoffrey.

    [67]   In the Estate of Badger (deceased) [2021] SASC 25, [44], [55]-[57] (Bampton J).

    Dealings between Mrs Burke and the Public Trustee

12. The evidence before the court disclosed various dealings between Mrs Burke and the Public Trustee which were the subject of sustained criticism by Mrs Burke. 

13. Lady Badger died as a widower with no children or grandchildren on 24 November 2016.  It seems that there had been no contact with any relatives in the United Kingdom for many years.  The 2012 will appointed Mr Burke as her sole executor and trustee subject to a half-secret trust.  However, Mr Burke developed cancer and became very ill during 2016.  He died on 29 December 2016, just over a month after the death of Lady Badger and without having obtained a grant of probate in her estate.

14. Mr Burke left a will dated 18 January 1997 appointing Mrs Burke as his executor and sole beneficiary. 

15. On Mr Burke’s death, the right to executorship of Lady Badger’s estate passed to Mrs Burke.  However, Mrs Burke did not obtain a grant of probate in Mr Burke’s estate and she did not therefore obtain the capacity to apply for a grant in the estate of Lady Badger. 

16. Mrs Burke appears to have advised Finlaysons, and later the Public Trustee, that she wanted the Public Trustee to accept and undertake the role of executor. Accordingly, the Public Trustee made an application for an order pursuant to s 9(1)(h) of the Public Trustee Act 1995 (SA) concerning Lady Badger’s estate on 28 June 2017. The Public Trustee was informed by the Registrar of Probates that the affidavit in support of the application had to recite the fact and date of the grant of probate in Mr Burke’s estate to Mrs Burke. As mentioned, Mrs Burke did not obtain a grant of probate in her husband’s estate.

17. On 8 January 2018, Mrs Burke requested the Public Trustee to make an application pursuant to s 9(1)(h) for an administration order in respect of Mr Burke’s estate.

18. The Public Trustee obtained a grant of letters of administration with the will annexed in Mr Burke’s estate on 7 June 2018 and a grant of letters of administration with the will annexed in Lady Badger’s estate on 9 August 2018.[68]

    [68]   In the Estate of Badger (deceased) [2021] SASC 25, [59]-[62] (Bampton J).

19. According to the affidavit of assets and liabilities concerning Mr Burke’s estate, the only asset was the estate of Lady Badger.  The Public Trustee advised the Registrar of Probates that all of Mr Burke’s other assets were held in joint names.

20. Mrs Burke made a number of complaints about the conduct of the Public Trustee and her officers.  Mrs Burke maintained, in effect, that she was told that she would obtain Lady Badger’s estate and it was only on this basis that she requested the Public Trustee to obtain probate.  It was suggested that the Public Trustee was affected by a conflict of interest, and even that she was acting as Mrs Burke’s agent.  However, no application to revoke probate was ever made. 

21. The primary judge held that the appellant’s complaints about the conduct of the Public Trustee could not affect the Public Trustee’s office as the lawfully appointed administrator of the deceased’s estates and they had no bearing on the construction of the 2012 will.[69]  Again, with respect, whilst these findings appear to be correct, it is not necessary to address the criticisms of Public Trustee for the purposes of determining this appeal.

    [69]   In The Estate of Badger (Deceased) [2021] SASC 25, [69]-[70] (Bampton J).

    The concept of a half-secret trust

22. Where a gift is accompanied by a statement that the gift is to benefit others, that does not necessarily give rise to a trust.  Dixon J described four of the potential interpretations that may be given to these statements in Bective v Federal Commissioner of Taxation.[70]

    [70]   Bective v Federal Commissioner of Taxation (1932) 47 CLR 417, 418-419 (Dixon J). The requisite analysis is objective, see for example Duggan v White [2018] NSWSC 364, [23]-[24] (Parker J).

23. Where a will gives property to a person, ostensibly beneficially, but in fact that person is to take the property for another, the trust is a “secret trust” or “fully secret trust” because the trust is not disclosed in the will.[71]  One purpose in creating the trust is to keep the identity of the beneficiary secret.  The requirements of a fully secret trust are:[72]

    It will be convenient to call the person upon whom such a trust is imposed the “primary donee” and the beneficiary under that trust the “secondary donee”.  The essential elements which must be proved to exist are: (i) the intention of the testator to subject the primary donee to an obligation in favour of the secondary donee; (ii) communication of that intention to the primary donee; and (iii) the acceptance of that obligation by the primary donee either expressly or by acquiescence.  It is immaterial whether these elements precede or succeed the will of the donor.

    [71]   L Tucker, N Le Poidevin and J Brightwell, Lewin on Trusts (Sweet & Maxwell, 20^th ed, 2020) [3-078].

    [72]   Ottaway v Norman [1972] 2 Ch 698, 711 (Brightman J). See also Blackwell v Blackwell [1929] AC 318; CH Sherrin et al, Williams on Wills (LexisNexis Butterworths UK, 9^th ed, 2013) vol 1, [36.10].

24. That is, the essential elements of a secret trust are:

    1.the intention of the testator to subject the primary donee to an obligation in favour of a secondary donee;

    2.communication of that intention to the primary donee; and

    3.the acceptance of that obligation by the primary donee expressly or by acquiescence.

25. In the case of a “half-secret trust”, the requirements are similar, but there the will gives property to a person on trusts which are referred to in the will, but not defined by the will,[73] and the trustee holds the property for the secret beneficiaries or, if the trusts fail, for those entitled to the residue or the next of kin on intestacy.[74] 

    [73]   Re Fleetwood; Sidgreaves v Brewer (1880) 15 Ch D 594 (“to be applied as I have requested him to do”); Blackwell v Blackwell [1929] AC 318 (“for the purposes indicated by me to them”); Re Beckbessinger [1993] 2 NZLR 362 (“to be held by them in accordance with a confidential memorandum which I have given to them”).

    [74]   CH Sherrin et al, Williams on Wills (LexisNexis Butterworths UK, 9^th ed, 2013) vol 1, [36.10].

26. In Ledgerwood v Perpetual Trustee Co Ltd, Young J considered the juristic basis for half-secret trusts, and how they “operate outside the will”:[75]

    The academic writings show that there are two competing theories as to the juristic basis for half secret trusts. One is that the trust flows from the will itself and the other is that the trust flows from the effect on the conscience of the person who has acquiesced in the half secret trust. The views are canvassed by the learned academic authors but the prevailing view is the latter. Because the trust flows from the effect on the conscience of the fiduciary, it matters not that there are problems with the formalities under the Wills Act or delegation of testamentary power or that there is a technical problem such as the beneficiary of the half secret trust witnessing the will. The main academic writings are Underhill and Hayton (at 235) and J G Fleming "Secret Trusts" (1947) 12 Conveyancer (NS) 28.

    Thus Megarry V-C could say in Re Snowden (deceased)[1979] Ch 528 at 535: "... the whole basis of secret trusts, as I understand it, is that they operate outside the will, changing nothing that is written in it, and allowing it to operate according to its tenor, but then fastening a trust on to the property in the hands of the recipient."

    [75]   Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532, 536-537 (Young J).

27. A similar approach has been taken to secret trusts, where the confidence is fastened upon the conscience of the trustee who cannot then appropriate the property to the trustee’s own use or dispose of it otherwise than in the accordance with the wishes of the testator.[76]

    [76]   Voges v Monaghan(1954) 94 CLR 231, 240 (Fullagar and Kitto JJ), citing Lord Davey in French v French[1902] 1 IR 172: “probably as clear an exposition of the principle as is to be found in the books.”

28. In Ledgerwood Young J also addressed whether it was necessary for the communication of the trust to be made by memorandum before or at the time of the making of the will.[77] The traditional rule, arising from Re Keen,[78] requires that there be communication of the existence of the half secret trust at any time up to execution of the will.  However, according to Young J:[79]

    The rule has … been severely criticised by the highest authority. Professor W S Holdsworth, in his article “Secret Trusts” (1937) 53 LQR 501, makes a powerful case that there can be no logical distinction between a secret trust where the communication can be at any time before death and a half secret trust. He says (p 506) the distinction appears to rest "upon a confusion of thought in the reasoning of Parker, VC in the case of Johnson v Ball[1851] EngR 959; (1851) 5 De G & Sm 85, 91; [1851] EngR 959; 64 ER 1029, 1032 which arises from a failure to distinguish a gift which is an absolute post-mortem gift from a gift which is not ...". Professor Holdsworth suggests (at 507) that a court should “simplify the law by getting rid of a distinction which is unreasonable and works substantial injustice”. See also B Perrins "Secret Trusts: The Key to the Dehors" (1985) 49 Conveyancer 248.

    [77]   Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532, 537 (Young J).

    [78]   Re Keen; Evershed v Griffiths [1937] Ch 236 (Re Keen). According to Young J, this approach “has its genesis in at least one of the judgments in Blackwell v Blackwell (at 339) and which has been reinforced by the recent decision of Re Bateman's Will Trusts; Brierley v Perry[1970] 1 WLR 1463” and it has been applied in other common law jurisdictions, such as Canada and New Zealand, see generally Ledgerwood (1997) 41 NSWLR 532, 536-538.

    [79]   Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532, 537 (Young J).

29. By contrast, in the case of a fully secret trust, the communication may be made at any time after the will, so long as it predates the death of the testator.  Young J observed that there was “very little on secret trusts in Australia” and the cases tended to be cases about fully secret trusts.[80] 

    [80]   Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532, 539 (Young J). See, for example, Re Tilley; Mackie v Jackson (1918) 25 ALR 6, sub nomRe Tulley; Mackay v Jackson [1918] VLR 556; Voges v Monagham(1954) 94 CLR 231; Guest v Webb[1965] VR 427; Dixon v White (Supreme Court of NSW, Holland J, 14 April 1982) and Public Trustee v Gecker (Supreme Court of NSW, Holland J, 14 April 1982).

30. Young J referred to Guest v Webb.[81]  In that case, the testatrix executed a will, stating that her executor shall distribute her estate in accordance with discussions between them.  She provided the will to her executor but retained her letter of wishes, saying she intended to alter it.  The ruling was that the testatrix intended to alter her letter and, as it had not been found at the date of death, she must have revoked her benefaction.  Young J observed that, in that case, Starke J cited Re Keen for the following proposition:[82]

    Where the gift on the face of the will is to the donee as trustee the communication of the testator’s wishes and intentions must be prior to or contemporaneously with the execution of the will. Where, however, the donee on the face of the will takes beneficially communication may be at any time up to death…

    [81]   Guest v Webb [1965] VR 427.

    [82]   Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532, 539-540 (Young J).

31. A large number of texts and authorities, particularly Irish authorities, were considered in Ledgerwood.  For example, as to the Irish approach, Young J explained:[83]

    The law in Ireland as to secret trusts was stated by Monroe, J in Re King's Estate (1888) 21 LR Ir Ch 273 at 277. Although he found that there was no secret trust arising in that case, Monroe J laid down seven propositions summarizing the law of Ireland. These have been repeated on many occasions since and can usefully be found in Delany, Equity and the Law of Trusts in Ireland (1996) Sweet & Maxwell, Dublin at 94. The fourth proposition is that there can be a valid half secret trust even if the communication is made subsequent to the execution of the will.

    In Re Browne; Ward v Lawler [1944] Ir R 90, the testator in 1935 had made a will leaving the whole of his estate to George Ward on the basis that: "I relying on his carrying out the wishes which I have expressed to him and/or may do so hereafter." In 1942, the testator gave to Mr Ward a document headed "Instructions" dated 23 November 1939 which he said contained the manner in which the estate was to be distributed. The testator died later the same day. Overend J upheld the trust. He said (at 97) that: "It is also immaterial that the trusts were communicated after the execution of the will, so long as they were communicated to the legatee, and accepted by him, in the lifetime of the testator."

    …

    Delany points out (at 96) of her book that the High Court in Ireland had the opportunity of clearing the matter up in Re Prendville (deceased); Prendiville v Prendiville (High Court of Ireland, Barron J, 5 December 1990, unreported) (1989 No 597Sp), where the point came before Barron J. The case is unreported, but it is the subject of an extensive note by J Mee in “Half Secret Trusts in England and Ireland” (1992) 56 Conveyancer 202. Barron J followed Re King's Estate and Re Browne and held that there was no difference in the rules applicable to fully secret and half secret trusts on the subject of communication. Unfortunately, he then, in the words of Mr Mee (at 203): "…embarked on an ill-advised attempt to demonstrate that, far from opposing his conclusion, the English cases in fact supported it." Although Re Prendiville was the subject of an appeal to the Irish Supreme Court, as far as my research has gone, no appeal was ever heard.

    [83]   Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532, 538 (Young J).

32. Young J held that, as a matter of principle, in the case of half-secret trusts the communication may occur at any time after execution of the will but before death.[84]  Young J preferred the reasoning of the Irish case, Re Browne; Ward v Lawler,[85] to that of Re Keen. 

    [84]   Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532, 540-541 (Young J).

    [85]   Re Brown; Ward v Lawler [1944] Ir R 90.

33. Accordingly, even though the memorandum of wishes in Ledgerwood was created after the will, Young J held that this was valid.  This view has since been favoured by a number of academic texts.[86]

    [86]   J McGhee at al, Snell’s Equity (Sweet & Maxwell, 34^th ed, 2020) [24-029]; L Tucker, N Le Poidevin and J Brightwell, Lewin on Trusts (Sweet & Maxwell, 20^th ed, 2020) [3-085] (to some extent); JD Heydon and MJ Leeming, Jacobs’ Law of Trusts in Australia (LexisNexis Butterworths, 8^th ed, 2016) [7-24]; Alexander Learmonth et al, Theobald on Wills (Sweet & Maxwell, 19^th ed, 2021) [5-023].

1. In my view, the issue of whether the evidence established a proper basis for the primary judge’s conclusion that the objects of the half secret trust in clause 1 of the 2012 will were as set out in the 2008 letter of wishes was finally balanced.

2. It is significant, in my view, that the 2008 letter of wishes was, in its terms, directed to the half secret trust created under the 2007 will.  It follows that the primary judge’s conclusion that the 2008 letter of wishes identified the objects of the half secret trust created under the 2012 will entailed an implicit conclusion that, when executing her 2012 will, Lady Badger communicated her desire that her 2008 wishes would, from that time, apply in respect of the 2012 will (despite that will not being mentioned in the 2008 letter of wishes).  It would seem that her Honour had in mind an oral communication to this effect.  While such a communication was entirely possible, one might have expected a fresh documentary record of those wishes to have been created that referred in terms to the 2012 will.  The absence of any such documentary record (whether because it was not created, or because it has been lost) sits a little uncomfortably with the primary judge’s emphasis, in this context and elsewhere, upon both Lady Badger’s practice of seeking, and Mr Burke’s practice of providing, prudent and professional testamentary services.

3. In short, while there is some force in the primary judge’s reasoning as to the applicability of the 2008 letter of wishes, the issue is finely balanced.

4. However, this does not assist Mrs Burke.  In order for her to establish an arguable interest in Lady Badger’s estate, it was necessary for her to establish an arguable basis for contending that Mr Burke was nominated as an object of the half secret trust.  For essentially the reasons given by the primary judge, the evidence that she relied upon fell short of what was required to justify her joinder.

5. In considering the evidence relied upon by Mrs Burke in this context, it is important to retain a focus upon the need for her to establish an arguable basis for a communication by Lady Badger to Mr Burke that he was to be a (or the) beneficiary of the half secret trust under the 2012 will.  (While Mrs Burke at times submitted that she might herself have been a beneficiary under that trust, there was simply no evidence at all to support this submission.  This speculative possibility can thus be put to one side.)

6. There was undoubtedly an evidential basis before the primary judge for contending that Mr Burke had a long association with Lady Badger, and that he came to be a friend of Lady Badger.  Indeed, Lady Badger described him as her “friend” in clause 1 of her will.  As such, there was a basis for contending that Mr Burke was someone who Lady Badger might well have wished to benefit through her estate; and that it would not have been surprising had she chosen to do so.  Further, the prospect of Lady Badger wishing to benefit Mr Burke might be said to have increased in 2016 once Lady Badger learned of Mr Burke’s illness.

7. But the evidence suggesting that Lady Badger may have wished to benefit Mr Burke was not enough.  It was insufficient to establish an arguable basis for Mrs Burke’s contention that Lady Badger made any particular communication of her wishes to Mr Burke, whether in July 2012 or subsequently, that included him as a beneficiary of the trust created under the 2012 will.

8. There was no direct evidence of any such communication.  The high point of the evidence in this respect was the hearsay evidence in the form of the passages from the affidavit of Mr Abbott and the Sinkinson note referred to above.

9. The passage from the affidavit of Mr Abbott was double hearsay and very general in its terms.  It amounted to no more than a statement from Mr Abbott, on information and belief from Mrs Burke, that at some point prior to Mr Burke’s death, but “presumably after the death of Lady Badger”, Mr Burke had told her that Lady Badger “had left her entire estate to him and … wished [him] to have and enjoy the entirety of her estate owing to his illness and his needs”.   

10. Even assuming Mrs Burke were to give evidence to this effect, it would still be hearsay.[301]  And given that Mr Burke and Lady Badger are both deceased it does not seem that the evidence will ever rise any higher than this.

    [301] And, potentially unlike any evidence that Mr Burke might have been able to give (had he not died) of communications to him by Lady Badger, would not appear to fall within any recognised exception or qualification to the operation of the rule against hearsay (Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 137-138 (Barwick CJ), at 149-153 (Gibbs J), at 159 (Murphy J); Bull v The Queen (2000) 201 CLR 443 at [79], [122] (McHugh, Gummow and Hayne JJ).

11. In addition to being hearsay, the evidence is entirely non-specific as to the timing, nature or terms of any communication by Lady Badger to Mr Burke of her wishes.  The reference to Mr Burke’s illness suggests the contemplated communication must have occurred in 2016, and so some four years after the creation of the half secret trust.  That would leave uncertain whether there was some interim expression of wishes, with the result that the evidence was intended to establish a replacement or variation of those wishes.  Importantly, the evidence does not address the manner in which Lady Badger intended to benefit Mr Burke; that is, whether she was merely contemplating that she might alter her will to make him a (or the) beneficiary, or whether she had communicated an intention that he be a beneficiary under the existing half secret trust.

12. In short, the evidence of Mr Abbott provides no real basis at all for the contention that Lady Badger made Mr Burke a beneficiary of the half secret trust that she created in her 2012 will.  If Mrs Burke was in a position to add any detail or precision, it is difficult to see why that was not included within the affidavit material placed before the Court, given that the very purpose of those affidavits was to demonstrate the basis for Mrs Burke’s asserted interest in Lady Badger’s estate.  But even taking a flexible approach that allows for the possibility that, if pressed on the issue, Mrs Burke may be able to provide some additional (hearsay) detail and colour, I am not persuaded that the evidence is capable of establishing anything more than a speculative basis for the asserted interest.

13. The passage from the Sinkinson note suffers from similar defects.  Again, it is double hearsay evidence of a most general kind.  In this case, the note apparently contains a record of Mr Sinkinson’s recollection of a conversation with Mrs Burke, which presumably took place in early 2017, in which Mrs Burke said that Mr Burke had told her “that the entire estate was to pass to him”.

14. Even accepting that the note is likely to have been prepared relatively contemporaneously with Mr Sinkinson’s conversation with Mrs Burke, and is an accurate record of that conversation, the evidence remains very general.  And even if it be assumed that Mrs Burke could give evidence to the effect of what she apparently said to Mr Sinkinson, the evidence would remain hearsay and very general in its terms.  It does not add in any material way to the passage from the affidavit of Mr Abbott.

15. It was not suggested that Mrs Burke could give any evidence that rose any higher than the passages from the Mr Abbott affidavit and Sinkinson note to which I have referred.  Certainly there was no suggestion that she could give any direct evidence of a relevant communication between Lady Badger and Mr Burke.  Mrs Burke does not purport to have been privy to any communication by Lady Badger as to her testamentary wishes, let alone a communication by Lady Badger as to the objects of the half secret trust in her 2012 will.

16. In my view, there was simply no evidential foundation for Mrs Burke’s contention that Mr Burke might have been an object of the half secret trust created through clause 1 of the 2012 will.  The evidence fell short of establishing any arguable basis for the requisite communication by Lady Badger to Mr Burke to the effect that he was a (or the) beneficiary of the half secret trust.  Mrs Burke’s asserted interest in the estate was based upon little more than speculation.

    Application to adduce further evidence

17. Mrs Burke sought to adduce further fresh evidence on appeal in the form of an email from Mr Burke to Ms Woods (a friend of Lady Badger) dated 24 November 2016.  The email only recently came to the attention of Mrs Burke’s advisors, and is a communication that occurred only a few hours after Lady Badger died.  For the reasons developed below, Mrs Burke contends that the evidence is relevant to her asserted interest in Lady Badger’s estate.

18. The email was in the following terms:

    Dear Debbie,

    Good morning.

    I trust you [had] a better and more restful night when you eventually got to your bed.  Please pass on my thanks to Sue, Narrisa and her sister for the personal care and attention and effort they have put in ensuring Edith’s last hours were comfortable and happy.  A big thank you to you also for your help and support in what can only be described as a very great sadness for all of us and myself in particular.  Like you, Edith and I had a very special bond.  Edith requested that, following her death, I was to offer to you, Sue and Narissa an article, item or memento of hers so that each would remember Edith fondly.  In this instance, I think perhaps Narissa’s sister should also be included.  Accordingly, will you please select and arrange for Sue, Narissa and her sister to also select one article, item or memento from Edith’s collection of possessions in her room at ‘The Lodge’.  Once each of you have made your selection, please let me know and I will record the article, item or memento in the estate papers.

    ‘The Lodge’ will require me to remove Edith’s possessions as soon as possible in order that the accommodation may be offered to another who requires aged care.  I suggest therefore, the selection be made today if possible.

    As I explained to you early this morning, Edith’s body was to be offered to The School of Medical Science.  But, in the event, the school is unable to accept any gifts prior to 4 December 2016.  Accordingly, her Plan A fails and her Plan B now falls into operation.  Edith’s body will be cremated in accordance with her instructions.  Edith’s ashes and those of Geoffrey will be conveyed to Hawaii, at some convenient future time in accordance with her written instructions as confirmed in her last will.

    I am happy for you to ‘spread the sad news’ regarding Edith’s passing.  Are you able to tell me if Father Prince gave Edith the Church’s blessing before she died?

    Warmest wishes,

    Richard

    Richard D Burke
    Executor

19. The principles governing the reception of further evidence on an appeal are well known, and do not require any detailed exposition. In short, the Court has a broad discretion under r 218.17(1)(c) of the Uniform Civil Rules 2020 (SA) to receive further evidence on a question of fact that arises on an appeal.  The discretion is not circumscribed by the common law principles governing the reception of “fresh evidence” on appeal,[302] although similar considerations apply.  In particular, it will generally be relevant to consider:[303]  

    ·whether the evidence was available, or could with reasonable diligence have been obtained, for use at the hearing below;

    ·whether the evidence is such that it would have had an important influence on the decision below.  While it need not necessarily be decisive, it must be more than merely relevant or useful;

    ·the likely practical impact of receiving the evidence, including whether it is controversial or contested, and if so likely to require cross-examination, further responding evidence and/or that the matter be remitted for rehearing; and

    ·the public interest in the finality of litigation.

    [302] CDJ v VAJ (No 1) (1998) 197 CLR 172 at [52] (Gaudron J), [104]-[108] (McHugh, Gummow and Callinan JJ).

    [303] CDJ v VAJ (No 1) (1998) 197 CLR 172 at [55] (Gaudron J), [111]-[116] (McHugh, Gummow and Callinan JJ) and [186]-[189] (Kirby J); Sunlight Nominees Pty Ltd v Zotti [2019] SASCFC 11 at [39]-[41] (Blue J).

20. The relevance of the last two considerations, and in particular the public interest in finality, was emphasised by the Full Court in both Chakravarti v Advertiser Newspapers Ltd[304] and Collex Waste Management Services Pty Ltd v The Corporation of the City of Enfield (No 2).[305]

    [304] Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361 at 372-373 (Doyle CJ and Perry J, Williams J agreeing).

    [305] Collex Waste Management Services Pty Ltd v The Corporation of the City of Enfield (No 2) [2000] SASC 140 at [17], [27]-[28] (Bleby J, Doyle CJ and Lander J agreeing).

21. Addressing the first of the relevant considerations identified above, the email was located within the files of the Public Trustee.  It was included within “a large bundle of photocopied documents” provided to Mrs Burke’s solicitors on 11 February 2021, and hence was in their possession at the time of the hearing of Mrs Burke’s application for joinder.  In that sense, the document was one that was available, or could with reasonable diligence have been available, for use by Mrs Burke at that hearing.

22. That said, it is nevertheless relevant that the document had always been available to the Public Trustee, and only came into the possession of Mrs Burke’s solicitors relatively late in the piece and as part of a large number of documents.  As an affidavit from Mrs Burke’s solicitor frankly acknowledges, when he first reviewed these documents he did not appreciate the potential significance of this email.  That only became apparent to him after the primary judge had delivered her reasons and he was preparing the matter for appeal.  In my view, the failure to appreciate the potential significance of this email in a timely manner was understandable given the relatively late and evolving nature of Mrs Burke’s involvement in the matter.

23. More importantly, however, I am not satisfied that the email would have had an important influence upon the outcome of the hearing before the primary judge. 

24. Mrs Burke relies upon the email as supporting her case that Mr Burke was the recipient of oral wishes from Lady Badger after the date of the 2012 will and prior to her death.  Mrs Burke relies in this respect upon two particular passages from the email.  The first is the reference to Lady Badger having “requested that, following her death, I was to offer to you, Sue [Giacobbe] and Narissa [Schuster] an article, item or memento of hers so that each of you would remember Edith fondly.”  The second is the reference to Lady Badger’s desire that her body be offered to The School of Medical Science.

25. It is true that the email provides some evidence that Lady Badger communicated with Mr Burke about her (post-death) wishes at some point in the lead up to her death.  However, I do not think the passages relied upon carry the significance that Mrs Burke seeks to attribute to them.

26. As to the first passage, Mrs Burke contends that it shows that Lady Badger no longer wished to benefit Ms Woods, Ms Giacobbe and Ms Schuster in the manner specified in the 2008 letter of wishes.  The 2008 letter of wishes specified distributions of up to $400,000 to Ms Woods,[306] $30,000 to Ms Giacobbe[307] and $10,000 to Ms Schuster.  Mrs Burke contends that it can be inferred from this first passage from the email that Lady Badger communicated to Mr Burke that she no longer wished to benefit these women in accordance with the 2008 letter of wishes; that she wished to confine their benefit to an “article, item or memento”.

    [306] To provide for the cost of a dwelling house, apartment or flat of her choosing to allow her absolute independence and security for the remainder of her lifetime.

    [307] To be used as a deposit on a house, apartment or flat of her choosing.

27. I do not draw this inference from the email.  I do not read the email as providing any basis for impugning the ongoing applicability of the 2008 letter of wishes. To my mind, the email suggests a more limited and informal communication by Lady Badger, probably in the immediate lead up to her death, to the effect that she wished these women to have a token by which to remember her.  I do not think any such communication suggests that Lady Badger wished to confine these women to these tokens, or is otherwise inconsistent with the objects of the half secret trust created through the 2012 will remaining as set out in the 2008 letter of wishes.  This construction of the email, as suggestive of an informal communication rather than a communication as to the objects of the half secret trust, is supported by Mr Burke’s statement in the following sentence of the email that “I think perhaps Narissa’s sister should also be included.”  Mr Burke could not have believed that he could simply add a person to the objects of the trust, whereas he might well have considered it appropriate to include Ms Schuster’s sister amongst the persons to receive a mere token from Lady Badger’s possessions.

28. Further, even if this first passage from the email might be construed as bearing upon the probability of the objects of the half secret trust being as set out in the 2008 letter of wishes, it does not bear directly upon the issues relevant to the outcome of the joinder application.  Success on the joinder application turned upon Mrs Burke establishing some basis for contending that she had some interest in Lady Badger’s estate, and not simply challenging the primary judge’s conclusion in relation to the 2008 letter of wishes.  While I accept that the two issues overlap to some extent, the joinder application was nevertheless focused upon the former rather than the latter.

29. As to the second passage from the email, Mrs Burke points out that it implied a communication to Mr Burke in relation to Lady Badger’s body (namely, that it be offered to the School of Medical Science) that differed from the wish expressed in her 2012 will (namely, that her body be cremated and her ashes scattered off the coast of Hawaii).  That may well be so, but I do not see how this would have influenced the outcome of the joinder application.  While it suggests that Lady Badger did communicate with Mr Burke about her post-death wishes in the period following the execution of her 2012 will, this is hardly surprising given that Mr Burke was her friend and the sole executor under her 2012 will.  But the apparent variation in her wishes as to her body does not bear directly upon the objects of the half secret trust she had established (or the relevance of the 2008 letter of wishes to the same), let alone upon the existence of some interest on the part Mrs Burke under that trust.

30. Having regard to the very limited relevance of the 24 November 2016 email from Mr Burke to Ms Woods, I would decline the application to receive it as further evidence on Mrs Burke’s appeal from the primary judge’s decision to refuse her application for joinder.

    Procedural complaints

31. Mrs Burke’s grounds of appeal include complaints to the effect that she was denied procedural fairness, both in respect of her case that the Public Trustee had a conflict of interest, and in respect of her case that she had an arguable interest in the estate of Lady Badger.

32. I have earlier in these reasons recounted the procedural history to Mrs Burke’s joinder application.  Relevantly, Mrs Burke was served with a copy of the Public Trustee’s application for advice and directions dated 24 July 2020, and the supporting affidavits. She appeared as a witness at the hearing on 17 August 2020.  She obtained legal representation at some point prior to the hearing on 12 November 2020, and was represented at that hearing and at the subsequent hearings on 21 December 2020, 2 February 2021 and 25 February 2021 (when her application for joinder was heard). Mrs Burke was given ample opportunity to file affidavit evidence in support of her application.  She filed a lengthy affidavit dated 11 December 2020, setting out her evidence. She subsequently filed three affidavits from her solicitor.

1. In relation to her case that the Public Trustee had a conflict of interest, the primary judge received several affidavits (each with documentary exhibits) addressing the relevant communications.  It is plain from those affidavits that there were several disputes between Mrs Burke’s solicitors and the Public Trustee’s solicitors in relation to access to documents.  It seems from the material before this Court that Mrs Burke’s solicitors were ultimately provided with most, if not all, of the documents they sought. To the extent that there remained any requests outstanding, Mrs Burke has not established that they relate to any documents which are likely to cast any significant light upon Mrs Burke’s allegation of a conflict of interest.

2. But even if there were further documents that bore on the communications between Mrs Burke and the Public Trustee, the difficulty with Mrs Burke’s case as to the existence of a conflict was such that it was not likely to be addressed through further documents.  As explained earlier, the difficulty with her case in this respect was that the Public Trustee did not ever assume any legal obligations to her that might have supported an allegation of conflict.

3. In relation to Mrs Burke’s case that she had an arguable interest in Lady Badger’s estate, I am not satisfied that there is any basis for any contention that the primary judge or Mrs Burke did not have access to all relevant documents; that is, all documents relevant to Lady Badger’s testamentary intentions and wishes, and in particular any communication from Lady Badger to the effect that she intended that Mr Burke (or Mrs Burke) be an object of the half secret trust in her 2012 will.

4. On my understanding of the documents disclosed to Mrs Burke, and my reading of the transcript of the hearings before the primary judge, Mrs Burke was given an adequate opportunity to prepare and present her case as to the existence of a conflict and as to the existence of an arguable interest that might require joinder.  I would reject Mrs Burke’s complaints to the contrary.

   Summary

5. At the risk of unnecessary repetition, I conclude by summarising that Mrs Burke’s application for joinder required that she demonstrate a possibility that she, through Mr Burke, had an interest in the estate of Lady Badger.  For the reasons explained, Lady Badger’s 2012 will left her estate to Mr Burke as trustee and not beneficially.  While the task of identifying the objects of that trust was attended by some doubt and difficulty, this did not provide a basis for Mrs Burke’s joinder.  She was not an object of the 2008 letter of wishes, and if the objects were not otherwise able to be appropriately identified, then the estate would not have gone to Mr Burke beneficially.  Rather, the trust would have failed and the estate would have gone to Lady Badger’s next of kin on intestacy. 

6. Thus, in order to succeed in her application for joinder, Mrs Burke was required to demonstrate a basis for the possibility that Mr Burke was an object of the half secret trust in the 2012 will.  Evidence that Mr Burke was a close associate and friend of Lady Badger, such that she might be expected to have been favourably disposed towards him, or might have wanted to benefit him, was not enough for this purpose.  Success on the application for joinder required some evidential basis for thinking that Lady Badger communicated to Mr Burke that he was to be a (or the) beneficiary under the half secret trust in her 2012 will.  For the reasons explained, and even allowing for the possibility that a communication post-dating the execution of the 2012 will may have sufficed for this purpose, Mrs Burke has not adduced any direct evidence of any such communication.  To the extent that there was any evidence at all that bore upon this issue, it was not only hearsay, but also very general in nature.  The possibility that Mr Burke was an object of the half secret trust remained speculative at best.

7. For these reasons, I am not persuaded that the primary judge erred in refusing Mrs Burke’s application to be joined as a party to the Public Trustee’s application for advice or direction.

   Costs

8. The primary judge ordered that Mrs Burke pay the Public Trustee’s costs of her application for joinder, on a standard basis.

9. Mrs Burke’s grounds of appeal include a challenge to this order.  While Mrs Burke advanced some submissions in support of this aspect of her appeal, it was not addressed in any detail by the parties.  Further, it seems to me that the matters set out in these reasons may be relevant to this Court’s consideration of the primary judge’s costs order.

10. In the circumstances, I consider it appropriate to defer consideration of the issue of costs, both at first instance and on appeal, until the parties have had an opportunity to consider these reasons.

    Conclusion

11. For the reasons set out, I would dismiss Mrs Burke’s appeal from the primary judge’s order refusing her application for joinder.  I would hear the parties further in relation to the appeal against the primary judge’s costs order, and in relation to the costs of the appeal.

    
    

12. STANLEY AJA: In this matter I gratefully adopt the exposition of the background facts and the analysis of the relevant legal principles set out in the judgments of Livesey P and Doyle JA. I generally agree with them as to the nature of the jurisdiction conferred by s 69 of the Administration and Probate Act 1919 (SA) (‘the Act’) and the power of joinder conferred by r 22.1 of the Uniform Civil Rules 2020 (SA). However, the issue is whether the primary judge committed appealable error in refusing to join the appellant to the application pursuant to s 69 for advice and direction. In my view she did not.

13. While I agree with Livesey P that given the complexity of and contest over the various issues he has canvassed in his reasons, it was open to the primary judge to address them as part of a binding determination made inter partes pursuant to s 69 of the Act and the rules of Court, that was not the path taken by the appellant either before the primary judge or on appeal. The appellant did not clearly apply to the Court for a binding inter partes determination.  On the contrary, she merely sought to be joined to the application for advice and direction.  She was afforded the opportunity to be heard and adduce evidence on the joinder application. 

14. It is important to recognise that this application for advice and direction is an application for private advice. The advisory jurisdiction conferred by s 69 of the Act is protective. It does not conclusively decide the issue in respect of which the Public Trustee, and any trustee, executor or administrator (‘the trustee’), has sought advice. It operates to protect the trustee and the interests of the trust.[308] It may be that the test for joinder on an application pursuant to s 69 of the Act is more onerous than is the case where an application is made for joinder in inter partes proceedings.  An application for advice and direction is generally made in private.  That is because the trustee is seeking the advice of the Court to determine the steps to be taken in the best interests of the administration of the estate.   Care must be exercised to ensure that the procedure does not result in the disclosure of information concerning the strengths and weaknesses of the trustee’s case.  In many instances that will justify the hearing of the application for advice and direction ex parte.  Accordingly, an application for joinder to an ex parte application for advice and direction might be required to meet a more stringent test than whether the party seeking to be joined can demonstrate an interest in the subject matter of the proceedings in circumstances where the trustee is not seeking the conclusive determination of substantive rights. 

    [308] Macedonian Orthodox Community Church St Petka Inc v His Eminence Peter the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at [45], [61]-[62], [65], [71]-[72] and [196].

15. However, it is not necessary to decide that question on this occasion.  The primary judge rejected the application for joinder on the basis that the appellant had no interest in the proper construction of the 2012 will or the application for advice and direction in relation to the distribution of Lady Badger’s estate.[309]  The test applied by the primary judge is the correct test applicable to an application for joinder to inter partes proceedings.[310]  Accordingly, the test adopted by the primary judge probably operated to the advantage of the appellant. 

    [309] In the Estate of Badger (deceased) [2021] SASC 25 at [11].

    [310] Ong v Lottwo Pty Ltd (in liq) (2013) 116 SASR 280 at [50]-[55].

16. I would dismiss the appeal from the order refusing the application for joinder.  I otherwise agree with the reasons of Doyle JA. 

17. I would hear the parties further in relation to the appeal against the costs order made by the primary judge and in relation to the costs of this appeal.