Celenza v Celenza Executor for Estate of Maria Celenza - [2025] WASC 183

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CELENZA -v- CELENZA EXECUTOR FOR ESTATE OF MARIA CELENZA [2025] WASC 183
CORAM:   STRK J
HEARD:   15 MAY 2025
DELIVERED          :   16 MAY 2025
FILE NO/S:   CIV 1528 of 2022
BETWEEN:   PAIGE SARAH MARIA CELENZA
Plaintiff
AND
NICOLA CELENZA EXECUTOR FOR ESTATE OF MARIA CELENZA
Defendant
NICOLA CELENZA EXECUTOR FOR ESTATE OF MARIA CELENZA
Plaintiff by counterclaim
PAIGE SARAH MARIA CELENZA
First Defendant by counterclaim
THE OFFICIAL TRUSTEE IN BANKRUPTCY on behalf of MARCO CELENZA
Second Defendant by counterclaim
MARCO CELENZA
Third Defendant by counterclaim
OSVALDO CELENZA
Fourth Defendant by counterclaim
MAURO CELENZA
Fifth Defendant by counterclaim
EZIO CELENZA
Sixth Defendant by counterclaim
NICOLA CELENZA
Seventh Defendant by counterclaim

Catchwords:

Practice and procedure - Application for leave to amend defence and counterclaim when trial part‑heard - Whether court should exercise discretion to grant amendment - Role of the court in its probate jurisdiction - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 21 r 5(2)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	SK Shepherd
Defendant	:	PR MacMillan
Plaintiff by counterclaim	:	PR MacMillan
First Defendant by counterclaim	:	SK Shepherd
Second Defendant by counterclaim	:	No appearance
Third Defendant by counterclaim	:	No appearance
Fourth Defendant by counterclaim	:	No appearance
Fifth Defendant by counterclaim	:	No appearance
Sixth Defendant by counterclaim	:	No appearance
Seventh Defendant by counterclaim	:	No appearance

Solicitors:

Plaintiff	:	Murray Chambers
Defendant	:	Peel Legal Barristers & Solicitors
Plaintiff by counterclaim	:	Peel Legal Barristers & Solicitors
First Defendant by counterclaim	:	Murray Chambers
Second Defendant by counterclaim	:	No appearance
Third Defendant by counterclaim	:	No appearance
Fourth Defendant by counterclaim	:	No appearance
Fifth Defendant by counterclaim	:	No appearance
Sixth Defendant by counterclaim	:	No appearance
Seventh Defendant by counterclaim	:	No appearance

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

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Custom Credit Corporation Ltd v Dallas Development Corporation Pty Ltd [2003] WASC 98
DM Drainage and Constructions Pty Ltd as trustee for DM Unit Trust t/as DM Civil v Karara Mining Ltd [No 3] [2018] WASC 398
Estate of Kouvakas; Lucas v Konakas [2014] NSWSC 786
Estate of Rogers v Rogers [2009] WASC 358
Genocanna Nominees Pty Ltd v Thirsty Point Pty Ltd (No 2) [2006] FCA 1335
Hall Chadwick Corporation Finance (WA) Pty Ltd formerly known as Hall Chadwick Securities Pty Ltd v Axiom Properties Ltd [2002] WASC 179
Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296
Hungry Jack's Pty Ltd v The Trust Company (Australia) Ltd [No 2] [2020] WASC 427
Introvigne v Commonwealth of Australia (1980) 32 ALR 251
JWH Group Pty Ltd v Kimpura Pty Ltd [2004] WASC 40
McArthur v Gerhard Janssen as attorney pursuant to section 34 Administration Act for Veronika Logar [2024] WASCA 15
McFarlane v Jeffery Crondon Smith as administrator of the estate of Dorothy Joyce McFarlane [2023] WASC 336
Mirabela Nickel Ltd (in liquidation) (receivers and managers appointed) v Mining Standards International Pty Ltd [No 7] [2023] WASC 155
Palmer v Citic Ltd [No 8] [2023] WASC 221
Re Przychodski [2016] VSC 781
University of Western Australia v Gray (No 24) [2008] FCA 1400
Wright Prospecting Pty Limited v Hancock Prospecting Pty Limited [2007] WASC 118

STRK J:

Introduction

By a chamber summons filed on 15 April 2025, the defendant/plaintiff by counterclaim sought leave to amend his reamended defence and counterclaim filed on 8 November 2024 in accordance with the minute of proposed further reamended defence and counterclaim, which document was marked attachment 'A' to the chamber summons.
The application was supported by a memorandum of conferral pursuant to Rules of the Supreme Court 1971 (WA) O 59 r 9(1), which recorded that despite conferral as between counsel, the application to amend was opposed by the plaintiff/first defendant by counterclaim.
In support of the application for leave to amend, the defendant/plaintiff by counterclaim relied upon the affidavit of Matthew Jamie Bassett‑Scarfe, solicitor, sworn on 6 May 2025; and an outline of submissions in support of the application filed on 5 May 2025.
The application for leave to amend was made in circumstances where the trial of the action, which had been listed for hearing over two days (on 26 and 27 March 2025), had been adjourned part heard on 27 March 2025 and then again adjourned part heard after an additional two hours of trial on 7 April 2025. The plaintiff's case is closed. The defendant/plaintiff by counterclaim has given evidence and was cross examined. Additional witnesses remain to be called by the defendant/plaintiff by counterclaim. The other named parties are not taking an active role in the trial. By orders made on 7 May 2025, a further two days (13 June 2025 and 3 July 2025) have been allocated for trial.
In the course of the hearing of the application for leave to amend on 15 May 2025, counsel for the defendant/plaintiff by counterclaim moved for leave to amend in a different form than marked attachment 'A' to the chamber summons. The application for leave to amend continued to be opposed by the plaintiff/first defendant by counterclaim.

The proposed amendment

By way of context, I note that Nicola Celenza as executor of the estate of the late Maria Celenza (the Deceased) is the defendant/plaintiff by counterclaim to the action. The plaintiff/first defendant by counterclaim pleads that Nicola Celenza is the executor of the Deceased's estate pursuant to a grant of probate dated 26 April 2016,[1] Nicola Celenza having applied for the grant of the probate of the last will and testament of the Deceased dated 23 February 2016.[2]
[1] Further substituted statement of claim filed 5 November 2024 par 2.4.
[2] Further substituted statement of claim filed 5 November 2024 pars 1.4, 8.
I first turn to describe the proposed amendment to the pleading of the defendant/plaintiff by counterclaim in the context of his current pleaded defence and counterclaim. The following is not intended to be a complete account of that pleading, nor of all of the matters in issue as between the plaintiff/first defendant by counterclaim and the defendant/plaintiff by counterclaim.
The defendant/plaintiff by counterclaim pleads that the Deceased died on 24 February 2016.[3]
[3] Reamended defence and counterclaim filed 8 November 2024 par 1.
In the pleading of the defendant/plaintiff by counterclaim at par 13, it is denied that the Deceased had testamentary capacity at the time of execution of the document dated 23 February 2016 (which the plaintiff/first defendant by counterclaim maintains is the last will of the Deceased and which the defendant/plaintiff by counterclaim refers to in his pleading as 'the Document').[4]
[4] Reamended defence and counterclaim filed 8 November 2025 par 13.
In the pleading of the defendant/plaintiff by counterclaim at par 14, further or alternatively, it is denied that at the time of the execution of the Document, the Deceased knew or approved of the contents of the Document.[5]
[5] Reamended defence and counterclaim filed 8 November 2025 par 14.
At par 15 of the pleading of the defendant/plaintiff by counterclaim, it is pleaded that by reason of the matters pleaded at par 13 and par 14, the defendant/plaintiff by counterclaim denies that the Document is a valid will.[6]
[6] Reamended defence and counterclaim filed 8 November 2025 par 15.
At par 16 of the pleading of the defendant/plaintiff by counterclaim, it is pleaded that the probate granted to the defendant/plaintiff by counterclaim on 26 April 2016 is to be revoked by reason of the matters pleaded at par 15.[7]
[7] Reamended defence and counterclaim filed 8 November 2025 par 16.
It is par 16 of the reamended defence and counterclaim that is now sought to be amended.
By the chamber summons, the defendant/plaintiff by counterclaim sought to introduce by way of amendment another basis for the probate granted to the defendant/plaintiff by counterclaim to be revoked. That is, the defendant/plaintiff by counterclaim sought to plead that by reason of the matters pleaded at par 15, and by reason that Marco Celenza (the third defendant by counterclaim) was excluded from the Document because he was an undischarged bankrupt, the probate granted to the defendant/plaintiff by counterclaim on 26 April 2016 is to be revoked.[8]
[8] Minute of proposed further reamended defence and counterclaim marked attachment 'A' to the chamber summons par 16.
The defendant/plaintiff by counterclaim also proffered particulars to the proposed amended plea. By way of particulars, the defendant/plaintiff by counterclaim referred to the correspondence from Carmelo Zagami, solicitor, addressed to the Deceased and dated 23 February 2016.[9]
[9] Minute of proposed further reamended defence and counterclaim marked attachment 'A' to the chamber summons par 16 (particulars).
In the course of the hearing of the application to amend on 15 May 2025, counsel for the defendant/plaintiff by counterclaim moved for amendment to par 16 in a different form than promoted by the minute of proposed further reamended defence and counterclaim marked attachment 'A' to the chamber summons. The defendant/plaintiff by counterclaim continued to press for the introduction by way of amendment of another basis for the probate granted to the defendant/plaintiff by counterclaim to be revoked. That is, the defendant/plaintiff by counterclaim sought to plead that by reason of the matters pleaded at par 15, alternatively by reason of the matters pleaded at par 15 and by reason that Marco Celenza was excluded from the Document at a time when he was an undischarged bankrupt, the probate granted to the defendant/plaintiff by counterclaim on 26 April 2016 is to be revoked.

Background

By way of background, the defendant/plaintiff by counterclaim submitted that it was uncontroversial that Marco Celenza was bankrupt in the period 30 September 2014 to 1 October 2017.[10]
[10] Defendant's outline of submissions in support of application filed 5 May 2025 par 3.
In the outline of submissions filed in support of the application (which promoted amendment of par 16 as recorded in the minute marked attachment 'A' to the chamber summons), counsel for the defendant/plaintiff by counterclaim submitted that the bankruptcy was uncontroversial; was referred to in the evidence; had given rise to the joinder of the second defendant (the official trustee in bankruptcy on behalf of Marco Celenza); and was a fact material to the counterclaim.[11] Counsel explained the position as follows.
[11] Defendant's outline of submissions in support of application filed 5 May 2025 par 4.
First, if the Deceased had the relevant testamentary capacity the bankruptcy is irrelevant.[12]
[12] Defendant's outline of submissions in support of application filed 5 May 2025 par 5.
Secondly, if the Deceased did not have testamentary capacity:[13]
(a)the grant of probate of the 23 February 2016 will (which the defendant/plaintiff by counterclaim maintains is void) will have the effect of avoiding the consequences of the bankruptcy;
(b)the bankruptcy as a result gives rise to a public policy consideration in the exercise of discretion as to revocation; and
(c)consideration of that public policy issue does not require the court to make a finding as to the provenance of the will. The effect of a lack of capacity and of bankruptcy give rise to a public policy consideration.
[13] Defendant's outline of submissions in support of application filed 5 May 2025 par 6.
Further, in support of amendment, it was submitted on behalf of the defendant/plaintiff by counterclaim that the proposed amendment was not substantial; did not seek to plead a fresh cause of action; sought to plead an uncontroversial fact of which the parties were aware long before the trial; and sought to plead that that fact is material to the exercise of discretion (which is a matter of legal characterisation and a matter for submission).[14]
[14] Defendant's outline of submissions in support of application filed 5 May 2025 par 7.
The application to amend (in the form first promoted by the chamber summons) was pressed in circumstances where it was submitted on behalf of the defendant/plaintiff by counterclaim that the amendment reflected the manner in which the case had been run at trial.[15] In this regard, counsel referred to par 96 of the written outline of opening submissions for trial filed on behalf of the defendant/plaintiff by counterclaim, under the heading 'Exercise of discretion', reproduced below:[16]
The 2016 Will was executed in light of Marco's bankruptcy. If the court is persuaded that the Deceased did not have capacity and or did not know of, or approve of the contents or effect of the 2016 will, and exercise of discretion to decline revocation would, in any event, need to run contrary to public policy.
[15] Defendant's outline of submissions in support of application filed 5 May 2025 par 12(d).
[16] Defendant and plaintiff by counterclaim's written outline of opening submissions filed 18 March 2025 par 96 (references omitted).
Counsel for the defendant/plaintiff by counterclaim sought to emphasise that the proposed amendment sought to bring the pleadings into line with the evidence and the manner in which the trial had to date been conducted.[17]
[17] Defendant's outline of submissions in support of application filed 5 May 2025 par 12(d).
It was also submitted that the plaintiff/defendant by counterclaim would have time to deal with the amendment (if made) before the resumption of the trial, and at that the proposed amendment was not the cause of the trial being adjourned part heard.[18]

Uncontroversial fact of bankruptcy

[18] Defendant's outline of submissions in support of application filed 5 May 2025 par 8.

As to the submission made that the fact of the bankruptcy of Marco Celenza was uncontroversial, I note that upon the application of the defendant by a minute of proposed orders filed on 5 December 2022, leave was granted to join the official trustee in bankruptcy on behalf of Marco Celenza as the second defendant to the counterclaim on 6 December 2022 (amending orders that had been made on 8 November 2022). Leave was similarly granted to join Marco Celenza as the third defendant to the counterclaim on the same day. Both were joined to the counterclaim on 8 December 2022. The official trustee in bankruptcy on behalf of Marco Celenza filed in this action a notice of intention to abide on 3 February 2023.
As to the submission made that the bankruptcy was uncontroversial and was referred to in the evidence, I noted that in his affidavit sworn on 29 September 2022 (which was tendered into evidence in the course of the trial), the defendant/plaintiff by counterclaim had deposed that 'MARCO CELENZA was an undischarged bankrupt at the date of the late MARIA CELENZA's death on 24 February 2016.'[19] Further, the tendered search of the National Personal Insolvency Index made on 24 June 2022 records that Marco Celenza's date of bankruptcy was 30 September 2014 and the date of discharge was 1 October 2017.[20]
[19] Exhibit D4.
[20] Exhibit D7.
Objection had been taken on behalf of the plaintiff/first defendant by counterclaim to the tender of the search of the National Personal Insolvency Index made on 24 June 2022 on the ground of relevance, as there was no reference in the pleaded case to the bankruptcy of Marco Celenza.[21] In response to the objection, counsel for the defendant/plaintiff by counterclaim submitted as follows:
MacMillan, Dr: ---it's one of our submissions that there is a public interest component in this matter, as appears from Mr Zagami's correspondence to the deceased on 23 February 2016. The will was effected, in the light of Marco Celenza's bankruptcy, and that clearly is a material matter in the case, and so we say the document is relevant as proof of bankruptcy.
…
MacMillan, Dr: Your Honour, you have a discretion as to whether revocation should be effected in relation to the 2016 will. This is part of the evidence in relation to the exercise of that discretion.
[21] ts 285 - 286 (27 March 2025).
The official trustee in bankruptcy on behalf of Marco Celenza had been joined as a defendant to the counterclaim. The search of the National Personal Insolvency Index made on 24 June 2022 was admitted into evidence on the basis that it informs the broader factual context in which the Document was made and the trial proceeds. Tendered on that basis, no objection was taken on behalf of the plaintiff/first defendant by counterclaim to it being admitted into evidence.[22]

Exclusion of Marco Celenza because of the bankruptcy

[22] ts 286 (27 March 2025).

While the fact of Marco Celenza's bankruptcy as at 23 February 2016 has been established on the evidence (and I understand not to be in issue), the form of amendment to par 16 initially pressed was that 'Marco was excluded from the Document because he was an undischarged bankrupt' (emphasis added).
As was made plain by the objection taken by counsel for the plaintiff/first defendant by counterclaim as to relevance (noted at [27] above), the exclusion of Marco Celenza as a beneficiary of the estate of the Deceased by the terms of the Document because he was an undischarged bankrupt had not been part of the pleaded case of the defendant/plaintiff by counterclaim.
As is noted above, by way of particulars to the additional plea in the form first proposed, reference was made to the correspondence from Mr Zagami to the Deceased dated 23 February 2016.[23]
[23] Minute of proposed further reamended defence and counterclaim marked attachment 'A' to the chamber summons par 16 (particulars).
In his affidavit sworn on 13 October 2023 (an affidavit admitted into evidence), the defendant/plaintiff by counterclaim had deposed to the enquiries that he had caused to be made in the search for the wills of the Deceased. A copy of the correspondence from Mr Zagami to the Deceased dated 23 February 2016 is one of the documents which make up annexure NC2 to that affidavit.[24]
[24] Exhibit D3.
Annexure NC2 to the affidavit of the defendant/plaintiff by counterclaim sworn on 13 October 2023 is an email sent on 14 June 2022 by a legal receptionist of the firm Frichot Lawyers to Mr Bassett‑Scarfe of Peel Legal. Attached to that email were 'documents in regard of the 23 February 2016 Will', namely a copy of the 23 February 2016 will, a letter from Mr Zagami of Frichot Lawyers addressed to the Deceased dated 23 February 2016, and handwritten notes. Among other things, the letter addressed to the Deceased included the following text:
Dear Mrs Celenza,
Last Will and Testament
We confirm our attendance at Bethesda Hospital on 23 February 2016 for the purpose of executing your Will.
We confirm your instructions to prepare your will to exclude your son, Marco Celenza, due to him being an undischarged bankrupt, and instead his share to be bequeathed to his daughter, Paige Sarah Maria Celenza.
We further confirm that prior to execution of your Will our Carmelo Zagami read your Will to you, in Italian, you confirmed that you understood and approved its contents and that you intended the document to be your Will.
We confirm our advice to you that you should not attach or staple anything to the Will or mark the Will in any way as this may have the effect of invalidating the Will.
We further confirm that the Will was executed by you and witnessed at Bethesda Hospital and that you have retained the original signed copy.
…

Mr Zagami had not been called by any party to give evidence in the trial of the action or counterclaim.
In opposition to amendment to par 16 in the form first pressed on behalf of the defendant/plaintiff by counterclaim, among other things, counsel for the plaintiff/first defendant by counterclaim noted that such amendment would be disruptive to the trial as Mr Zagami would need to be called to give evidence and if not called by the defendant/plaintiff by counterclaim, Mr Zagami would be subpoenaed to attend to give evidence by the plaintiff/first defendant by counterclaim.

The alternative amendment promoted

After engagement with the court in the course of the application, and after hearing counsel for the plaintiff/first defendant by counterclaim in opposition to the application, counsel for the defendant/plaintiff by counterclaim moved for a form of amendment which involved a pleading of what was said to be the uncontroversial fact of Marco Celenza's bankruptcy at the time the Document was executed, and not that 'Marco was excluded from the Document because he was an undischarged bankrupt' (my emphasis).
As to the varied form of proposed amendment, counsel for the defendant/plaintiff by counterclaim confirmed that the (hearsay) statements made by Mr Zagami in his correspondence addressed to the Deceased dated 23 February 2016 would not be sought to be relied upon to prove the fact of Marco Celenza's status as a bankrupt on 23 February 2016.
While amendment to par 16 continued to be opposed, counsel for the plaintiff/first defendant by counterclaim noted that the alternative amendment would not require the calling of Mr Zagami to give evidence.

Explanation for delay

The affidavit of Mr Bassett-Scarfe sworn on 6 May 2025 was read in support of the application for leave to amend. At pars 3 and 4 of that affidavit, Mr Bassett-Scarfe deposed as follows:
…
3.Joinder of the Second Defendant by Counterclaim was opposed by the Plaintiff during these proceedings and the opposition failed.
4.The Defendant and his legal advisers were not aware that a pleading point was to be taken to the Bankruptcy of the Third Defendant by Counterclaim and its relevance and effect in the exercise of discretion until the tender of exhibit D7 during the trial.
In the course of the hearing, counsel for the defendant/plaintiff by counterclaim accepted that it was only upon an objection as to relevance taken by reference to the pleadings that the need to amend was appreciated by him and by the legal representatives of the defendant/plaintiff by counterclaim.

Prejudice - the position of the defendant/plaintiff by counterclaim

Counsel for the defendant/plaintiff by counterclaim sought to emphasise that there would be no prejudice to the plaintiff/first defendant by counterclaim if amendment were allowed in the final form promoted, and that the issue of the admissibility of the correspondence of Mr Zagami to establish the truth of the matters therein recorded would fall away.

The position of the plaintiff/first defendant by counterclaim

Leave to amend par 16 continued to be opposed on behalf of the plaintiff/first defendant by counterclaim, albeit the final form of proposed amendment was acknowledged to be less problematic for the conduct of the trial than the amendment initially promoted.
In summary, counsel for the plaintiff/first defendant by counterclaim complained that:
(a)the application was made late and the explanation for the delay in seeking to amend the reamended defence and counterclaim given by Mr Bassett-Scarfe had been insufficient (as an adequate explanation was not revealed by counsel for the defendant/plaintiff by counterclaim failing to anticipate that the defendant/plaintiff by counterclaim would be held to his pleading); and
(b)there was no real prospect (as a matter of law) that a public policy consideration of the nature described by counsel to the defendant/plaintiff by counterclaim would be a factor to be weighed by the court in determining whether to revoke the grant of probate.

Applicable principles

Power to amend

Pursuant to the Rules of the Supreme Court O 21 r 5, the court has the power at any stage of a proceeding to allow any party to amend that party's pleading, on any terms as to costs or otherwise that may be just and in the manner (if any) that the court may direct.
The principles concerning whether amendment should be allowed are not prescribed by Rules of the Supreme Court O 21 r 5. They involve the exercise of discretion in the interests of justice.[25]
[25] DM Drainage and Constructions Pty Ltd as trustee for DM Unit Trust t/as DM Civil v Karara Mining Ltd [No 3] [2018] WASC 398 [16]. See also LexisNexis, Civil Procedure - Western Australia (at 16 May 2025) [21.5.1].
Generally speaking, where a discretion is sought to be exercised in favour of one party, to the disadvantage of another, an explanation will be called for. It is necessary for the applicant to show that their application is made in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules of the Supreme Court.[26]
[26] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 [103]. See also LexisNexis, Civil Procedure - Western Australia (at 16 May 2025) [21.5.2].
Generally speaking, the delay should be explained by affidavit.[27] There may be circumstances where an affidavit is not required. For example, where all parties have been aware that a claim is made in the manner of the contemplated amendment and a trial has proceeded upon that understood but not pleaded basis.[28] Also where the proposed amendment concerns the legal characterisation of a factual matter and conclusions which flow from the evidence.[29]
[27] Hungry Jack's Pty Ltd v The Trust Company (Australia) Ltd[No 2] [2020] WASC 427 [23]. See also LexisNexis, Civil Procedure - Western Australia (at 16 May 2025) [21.5.2].
[28] Mirabela Nickel Ltd (in liquidation) (receivers and managers appointed) v Mining Standards International Pty Ltd [No 7] [2023] WASC 155 [55] - [58], citing Genocanna Nominees Pty Ltd v Thirsty Point Pty Ltd (No 2) [2006] FCA 1335.
[29] Mirabela Nickel Ltd (in liquidation) (receivers and managers appointed) v Mining Standards International Pty Ltd [No 7] [56].
There is no entitlement to amendment as of right, with appropriate cost consequences or otherwise.[30]
[30] Aon Risk Services Australia Limited v Australian National University [111]. See also LexisNexis, Civil Procedure - Western Australia (at 16 May 2025) [21.5.3].
The goal of Rules of the Supreme Court O 1 r 4A (the elimination of delay beyond that reasonably required for the fair and just determination of the issues bona fide in contention) must be weighed in the balance. Similarly, the court will weigh in the balance the objectives of Rules of the Supreme Court O 1 r 4B(1) (in short, the just, efficient and timely determination of business using resources proportionate to the value and complexity of the subject matter of the dispute).[31]
[31] Hungry Jack's Pty Ltd v The Trust Company (Australia) Ltd [No 2] [20]. See also LexisNexis, Civil Procedure - Western Australia (at 16 May 2025) [21.5.3].
It has been observed that it is more difficult for a party to obtain leave to make substantial amendments during a trial in the era of case flow management.[32]
[32] Custom Credit Corporation Ltd v Dallas Development Corporation Pty Ltd [2003] WASC 98 [104], [113]. See also Lexis Nexis, Civil Procedure - Western Australia (at 16 May 2025) [21.5.5].
I proceeded on the basis that it is important to weigh the nature and importance of the amendment to the applicant seeking leave to amend; the extent of the delay; the associated costs; and the prejudice which might reasonably be assumed to follow.[33]
[33] Aon Risk Services Australia Limited v Australian National University [102]. See also LexisNexis, Civil Procedure - Western Australia (at 16 May 2025) [21.5.3].
In this regard, a consideration relevant to an application to amend at a late stage will be whether or not an adjournment would be likely to result if the amendment were allowed and if that would be an advantage to the party moving the amendment.[34] Further, the need to recall witnesses would also be a matter to be weighed in the balance.[35]
[34] JWH Group Pty Ltd v Kimpura Pty Ltd [2004] WASC 40 [33]; Hall Chadwick Corporation Finance (WA) Pty Ltd formerly known as Hall Chadwick Securities Pty Ltd v Axiom Properties Ltd [2002] WASC 179 [32] - [33]. See also LexisNexis, Civil Procedure - Western Australia (at 16 May 2025) [21.5.5].
[35] Wright Prospecting Pty Limited v Hancock Prospecting Pty Limited [2007] WASC 118 [67] - [68]. See also LexisNexis, Civil Procedure - Western Australia (at 16 May 2025) [21.5.6].
It may be appropriate to allow an amendment in relation to an issue that has emerged at trial and has been litigated such that the amendment is the formalisation of the actuality of the case being made.[36]
[36] Mirabela Nickel Ltd (in liquidation) (receivers and managers appointed) v Mining Standards International Pty Ltd [No 7] [81]. See also University of Western Australia v Gray (No 24) [2008] FCA 1400 [7] - [12], citing Introvigne v Commonwealth of Australia (1980) 32 ALR 251, 260 (albeit in the context of an amendment in a case pending appeal); LexisNexis, Civil Procedure - Western Australia (at 16 May 2025) [21.5.6].
Authorities dealing with how other judges have exercised their discretion are valuable. That said, each application will turn on its own facts. In the end, there is a need to balance the timely and efficient disposal of the business of the court with what is reasonably required for the fair and just determination of the issues between the parties.
I also note that the applicable principles were summarised by Beech J in Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296 at [52], which decision encapsulated the principles outlined above, and I had regard to the same in the disposition of this application. The reasons of Beech J have been applied and adopted, including in Palmer v Citic Ltd [No 8] [2023] WASC 221 by Lundberg J at [27] and in Mirabela Nickel Ltd (in liquidation) (receivers and managers appointed) v Mining Standards International Pty Ltd [No 7] by Hill J at [11].

Role of the court in its probate jurisdiction

In the exercise of the court's discretion whether to allow the amendment to the defendant/plaintiff by counterclaim's pleading, I also proceeded cognisant of the context in which the application was made. In this regard, I noted the following four points.
First, given the origins of the probate jurisdiction in the ecclesiastical courts of England, the court has broad jurisdiction regarding probate matters, which should not be subsumed into those of common law and equity.[37]
[37] Estate of Kouvakas; Lucas v Konakas [2014] NSWSC 786 [102] - [115]. See also Supreme Court Act 1935 (WA) s 18; Administration Act 1903 (WA) s 4; Supreme Court Ordinance 1861 (24 Vict., No. 15); LexisNexis, Civil Procedure - Western Australia (at 16 May 2025) [1115.1].
Secondly, the probate jurisdiction is not primarily concerned with claims of right between adversarial parties. It is concerned with the due administration of property (in the form of an 'estate') having regard to the interests of the dead, the living and the public.[38]
[38] Estate of Kouvakas; Lucas v Konakas [108]; McArthur v Gerhard Janssen as attorney pursuant to section 34 Administration Act for Veronika Logar [2024] WASCA 15 [173]. See also LexisNexis, Civil Procedure - Western Australia (at 16 May 2025) [1115.1].
Thirdly, in exercising its probate jurisdiction, the court has an inquisitorial role that requires a greater supervision and control of proceedings than in adversarial proceedings.[39]
[39] McFarlane v Jeffery Crondon Smith as administrator of the estate of Dorothy Joyce McFarlane [2023] WASC 336 [69]. See also Re Przychodski [2016] VSC 781 [14]; LexisNexis, Civil Procedure - Western Australia (at 16 May 2025) [1115.1].
Fourthly, where the circumstances provide, the court may, of its own motion, once the relevant facts have been brought to its attention and established, take such steps as are necessary to conduce to the proper administration of the estate.[40]
[40] Estate of Rogers v Rogers [2009] WASC 358 [31]. See also LexisNexis, Civil Procedure - Western Australia (at 16 May 2025) [1115.1].

Disposition

In the disposition of the application, cognisant that there is no entitlement to amendment as of right, with appropriate cost consequences or otherwise, I weighed the following in the balance.
First, the application to amend was made late. The action was commenced by writ on 27 May 2022. There have been various versions of the pleaded defence and counterclaim, the first filed on 16 August 2022. The application to amend is made in the course of a trial that has been adjourned part heard.
Secondly, while not pleaded, since the filing of the written outline of opening submissions for trial on behalf of the defendant/plaintiff by counterclaim on 18 March 2025, the plaintiff/first defendant by counterclaim had been on notice of what was (then) said to be the relevance of the bankruptcy of Marco Celenza to the exercise of the court's discretion with respect to the revocation of the grant of probate.[41] While not admitted into evidence for that purpose, counsel for the defendant/plaintiff by counterclaim sought to tender the search of the National Personal Insolvency Index made on 24 June 2022 for a purpose consistent with par 96 of the written outline of opening submissions for trial.
[41] Defendant and plaintiff by counterclaim's written outline of opening submissions filed 18 March 2025 par 96 (references omitted).
Thirdly, as is noted above, generally speaking the delay on the part of the applicant to amend should be explained by affidavit.[42] In this case, the explanation provided was at par 4 of Mr Bassett-Scarfe's affidavit of 6 May 2025. While the explanation provided at par 4 was not adequate, the explanation proffered by Mr Bassett-Scarfe suggested that it was only upon an objection as to relevance taken on behalf of the plaintiff/first defendant by counterclaim by reference to the pleadings that the need to amend was appreciated by the legal representatives of the defendant/plaintiff by counterclaim. I also accepted that the application for leave to amend was made in good faith.
[42] Hungry Jack's Pty Ltd v Trust Co (Australia) [23]. See also Lexis Nexis, Civil Procedure - Western Australia (at 16 May 2025) [21.5.2].
In the balance, I also noted that this was not a case where all parties had been aware that a claim had been made in the manner of the contemplated amendment, and the trial had proceeded upon that understood but not pleaded basis.[43] Indeed, I noted the remarks made by counsel for the plaintiff/first defendant by counterclaim in his opening submissions, reproduced below:[44]
Now, I don't know whether it's going to be suggested that the – that there's something that arises from the issue about the bankruptcy of Marco Celenza, I don't know whether it is, but Marco Celenza says – and there's no doubt that, had Marco Celenza been a beneficiary, then what he inherited from the will would be – would pass to his trustee of bankruptcy, no one suggests anything else, …
[43] Mirabela Nickel Ltd (in liquidation) (receivers and managers appointed) v Mining Standards International Pty Ltd [No 7] [55] - [58], citing Genocanna Nominees Pty Ltd v Thirsty Point Pty Ltd (No 2).
[44] ts 171 - 172 (26 March 2025).
Nor was this a case where the proposed amendment concerned the legal characterisation of a pleaded factual matter, and conclusions which flowed from the evidence. The relevant material fact was only sought to be pleaded by this application to amend.
Fourthly, the objection by which counsel was put on notice of the lacuna in the pleading was taken by counsel for the plaintiff/first defendant by counterclaim on 27 March 2025. The application to amend was filed on 15 April 2025. The delay in the listing of the application to amend was a consequence of counsel for the plaintiff/first defendant by counterclaim having been on leave from 13 April 2025 until 5 May 2025.[45]
[45] ts 341 (27 March 2025); affidavit of JW Sloan sworn 14 May 2025, JS1.
Fifthly, as to the nature and importance of the amendment to the applicant seeking leave to amend, in summary, counsel for the defendant/plaintiff by counterclaim noted that it was only upon the court having found that the Document was not a valid will that the jurisdiction to revoke the grant of probate would be enlivened, at which time, the defendant/plaintiff by counterclaim would contend that the material fact sought to be pleaded (that Marco was excluded from that Document at a time when he was an undischarged bankrupt) would become a matter for the court to consider in determining whether to revoke the grant of probate.
In summary, counsel for the plaintiff/first defendant by counterclaim submitted that there was no prospect (as a matter of law) that a public policy consideration of the type sought to be agitated and made available by the amended pleading would be a factor to be weighed by the court in determining whether to revoke the grant of probate.
On balance, I considered that it would not be appropriate to refuse the amendment on the basis promoted on behalf of the plaintiff/first defendant by counterclaim. I considered it appropriate to allow for the amendment to include an uncontentious material fact, which could be the subject of particulars and developed in submissions. Such approach was also informed by the role of the court in its probate jurisdiction, and particularly its inquisitorial role. These matters weigh in favour of the exercise of discretion to allow the amendment.
Sixthly, all counsel had underestimated the time required for trial and an additional two days had been allocated. By reason of counsel availability, the additional days allocated were 13 June 2025 and 3 July 2025, affording counsel for the plaintiff/first defendant by counterclaim four weeks before further witnesses are called and seven weeks before closing submissions are to be made. Given the additional dates now allocated, counsel for the plaintiff/first defendant by counterclaim will have more time to consider the implications of the amended plea than would have been the case if the application to amend had been made mid-trial without a break in trial dates.
Seventhly, it will not be necessary to recall witnesses who have completed their evidence if leave to amend is granted in the form of amendment finally pressed on behalf of the defendant/plaintiff by counterclaim.
Eighthly, it will not be necessary to call additional witnesses if leave to amend is granted in the form of amendment finally pressed on behalf of the defendant/plaintiff by counterclaim, and there will be no need to vacate or add to the additional trial days that have been allocated.
In the end, there was a need to balance the timely and efficient disposal of the business of the court with what is reasonably required for the fair and just determination of the issues between the parties. On balance, having weighed all of the matters summarised above, I considered that discretion ought be exercised so as to allow the amendment proposed.
For the just and efficient determination of business, I considered it also appropriate to order that within seven days, the defendant/plaintiff by counterclaim must also file and serve:
(a)particulars of par 16 of the pleading (as amended), so as to provide all facts, circumstances or characteristics of bankruptcy and/or the bankruptcy of Marco Celenza, which are said to ground the plea for revocation of the grant of probate; and
(b)a supplementary outline of submissions in substitution of par 96 of the outline of submissions for trial filed on 18 March 2025, as to the case of the defendant/plaintiff by counterclaim as will now be pleaded at par 16 (as amended).

Conclusion and orders

The defendant/plaintiff by counterclaim shall have leave to amend par 16 of the re-amended defence and counterclaim filed on 8 November 2024, as follows:
By reason of the matters pleaded in [15] hereof or alternatively, by reason of the matters pleaded in [15] hereof and by reason that Marco was excluded from the Document at a time when he was an undischarged bankrupt, the probate granted to the Defendant 26 April 2016 is to be revoked.
As to costs, after hearing counsel, orders were made in the following terms:

(a)the defendant/plaintiff by counterclaim do pay the costs of the plaintiff/first defendant by counterclaim that arise as a consequence of the grant of leave to amend; and
(b)the defendant/plaintiff by counterclaim do pay the costs of the plaintiff/first defendant by counterclaim of the application for leave to amend in the cause.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CR
Associate to the Honourable Justice Strk
16 MAY 2025