Legal Research
Cases
Carr v Larussa

Carr v Larussa

Case [2018] WASC 176 13 June 2018

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CARR -v- LARUSSA [2018] WASC 176
CORAM:   ACTING MASTER STRK
HEARD:   12 APRIL, 18 MAY, 27 JUNE 2017, AND ON ADDITIONAL PAPERS FILED BETWEEN 30 JUNE & 6 OCTOBER 2017
DELIVERED          :   12 JUNE 2018
PUBLISHED           :   13 JUNE 2018
FILE NO/S:   CIV 1237 of 2017
MATTER:   The Estate of Giuseppe Larussa of Gracefield Park Farms, Beermullah West Road, Beermullah, Western Australia, deceased
BETWEEN:   ANNA CARR
Plaintiff
AND
TONY LARUSSA
First Defendant
LARUSSA PASTORAL HOLDINGS PTY LTD as trustee for THE LARUSSA PASTORAL TRUST
Second Defendant
LARUSSA CUSTODIAN SERVICES AUSTRALIA PTY LTD as trustee for THE LARUSSA PASTORAL TRUST
Third Defendant
MARIA ANGELINA GENNARINA LARUSSA
Fourth Defendant

Catchwords:

Executors and trustees - Private advice application - Directions sought as to whether an administratrix of an estate is justified in maintaining and pursuing proceedings

Application by beneficiary for production of document for inspection - Trustee claimed legal professional privilege in respect of document - Whether trustee and beneficiary entitled to joint privilege - Claim for legal professional privilege established

Legislation:

Criminal Property Confiscation Act 2000 (WA), s 135, s 161
Property Law Act 1969 (WA)
Rules of the Supreme Court 1971 (WA), O 58 r 2
Trustees Act 1962 (WA), s 6, s 71, s 92, s 95

Result:

Application for production of document for inspection dismissed
Legal professional privilege established
Direction given

Category: B

Representation:

Counsel:

Plaintiff	:	Mr S M Standing
First Defendant	:	Mr D J Garnsworthy
Second Defendant	:	No appearance
Third Defendant	:	Mr M T Mckenna
Fourth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Friedman Lurie Singh & D'Angelo
First Defendant	:	Corporate Counsel Lawyers
Second Defendant	:	No appearance
Third Defendant	:	Gilbert + Tobin
Fourth Defendant	:	No appearance

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

Adenan v Bruise [1984] WAR 61
AG v Hayden and others [1984] 156 CLR 532
ANZ v Dzienciol [2001] WASC 305
Avanes v Marshall [2007] NSWSC 191; (2007) 78 NSWLR 595
Blomley v Ryan [1954-1956] 99 CLR 362
Bridgewater v Leahy [1998] HCA 66
Carr v Larussa [2016] WASC 13
Carr v Larussa Custodian Services Australia Pty Ltd [2017] WASC 42
Carr v Larussa Pastoral Holdings Pty Ltd [2015] WASC 300
Commonwealth Bank v Amadio [1982-3] 151 CLR 447
Johnson v Buttress [1936] 56 CLR 113
Krok v Szaintop Homes Pty Ltd & Ors (No 1) [2011] VSC 16
Larussa Pastoral Holdings Pty Ltd v Carr [2015] WASCA 194
Larussa v Anna Carr as administratrix of the estate of Giuseppe Larussa [2016] WASC 332
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar (2008) 237 CLR 66
Mercanti v Mercanti [2015] WASC 297
Plan B Trustees Ltd v Parker [No 2] [2013] WASC 216
Property Law Act 1969 (WA)
Property Law Act 1969 (WA)
Re Estate of Anastasios Keriacules Challis (Dec) [2010] WASC 333
Re Estate of Anastasios Keriacules Challis (Sec) [2010] WASC 333
Schreuder v Murray [No 2] [2009] WASCA 145; (2009) 41 WAR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carr v Larussa

Details

AGLC: Carr v Larussa [2018] WASC 176
Case: [2018] WASC 176
Decision Date: 13 JUNE 2018

CaseChat Overview and Summary

In the case of Carr v Larussa, the parties involved are the executrix of the deceased's estate, Larussa, and a beneficiary of the estate, Carr. The dispute revolves around the executrix's decision to continue litigation related to the estate, which Carr seeks to challenge. The application was heard in the Supreme Court of Queensland. Carr applied for the production of a document for inspection, asserting that the executrix, Larussa, was not justified in maintaining and pursuing the proceedings. Larussa claimed legal professional privilege over the document in question.

The central legal issue before the court was whether the executrix and the beneficiary were entitled to a joint privilege over the document in question. The court had to determine if the privilege claimed by the executrix was valid and whether it extended to the beneficiary. The court considered whether the document was prepared for the dominant purpose of giving or receiving legal advice and whether the executrix and beneficiary had a shared interest in maintaining confidentiality. The court further examined the nature of the relationship between the executrix and the beneficiary to assess if they could claim a joint privilege.

The court found that the executrix was entitled to claim legal professional privilege over the document, as it was prepared for the dominant purpose of providing legal advice. However, the court held that the executrix and the beneficiary did not have a joint privilege over the document, as they did not share a common interest in maintaining confidentiality. Consequently, the court rejected Carr's application for the production of the document for inspection. The court's decision underscored the importance of the dominant purpose test and the shared interest requirement for establishing legal professional privilege.

No specific orders were made in this instance as the application was dismissed. However, the court's ruling clarified the scope of legal professional privilege in the context of estate litigation and the rights of beneficiaries in relation to documents held by executrices.

Orders