D'Agostino as executor of the estate of Nadia D'Agostino v Musca as administrators of the estate of Joseph Musca
[2021] WASC 388
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: D'AGOSTINO as executor of the estate of NADIA D'AGOSTINO -v- MUSCA as administrators of the estate of JOSEPH MUSCA [2021] WASC 388
CORAM: REGISTRAR GRIFFIN
HEARD: 28 SEPTEMBER 2021
DELIVERED : 9 NOVEMBER 2021
PUBLISHED : 9 NOVEMBER 2021
FILE NO/S: PRO 6999 of 2020
BETWEEN: ROBERTO D'AGOSTINO as executor of the estate of NADIA D'AGOSTINO
Applicant
AND
MARIO MUSCA and VINCE MUSCA as administrators of the estate of JOSEPH MUSCA
Respondents
Catchwords:
Probate - Administration - Application for access to documents - Whether application should be granted - Whether there are 'very cogent reasons' to grant application
Practice and procedure - Undertakings - Implied undertaking - Whether application for access to documents is for improper or collateral purpose
Legislation:
Administration Act 1903 (WA)
Non-contentious Probate Rules 1967 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application granted
Category: B
Representation:
Counsel:
| Applicant | : | J Steedman |
| Respondents | : | A Metaxas |
Solicitors:
| Applicant | : | Steedman Stagg |
| Respondents | : | Metaxas Legal |
Case(s) referred to in decision(s):
De Haas v Murcia and Associates (Unreported, WASC, 14 September 1998)
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
In re Collins' Will Trusts [1971] 1 WLR 37
In re Eleanor Taylor's Estate and Will Trusts [1969] 2 WLR 1371
Sharp v Lush (1879) 10 Ch D 468
REGISTRAR GRIFFIN:
In these reasons I refer to the parties by their first names. The parties do not appear on this application in their personal capacities, but as an executor and administrators of two deceased estates. No disrespect is intended by referring to them by their first names.
This is an application by Roberto D'Agostino (Roberto) for access to an affidavit sworn by Mario and Vince Musca (Mario and Vince respectively) on 27 August 2021 (Musca Affidavit).[1]
[1] The application was made by letter dated 21 September 2021 from Steedman Stagg addressed to the Associate to Registrar Griffin.
For the reasons below, I find that Roberto should be granted access to the Musca Affidavit.
Background
There is a complex background to this application.
Mario and Vince swore the Musca Affidavit in support of their application for administration of the intestate estate of their brother, Joseph Musca (Joseph Senior), who died on 23 September 2013.
At the time of his death, Joseph Senior:
(a)had three adult children, Leon Musca (Leon), Samantha Hillary (Samantha) and Joseph Gullotti (Joseph);
(b)was married to Nadia D'Agostino (Nadia); and
(c)had two infant children from his marriage to Nadia.
An application for administration of Joseph Senior's estate had been prepared by or on behalf of Nadia, but she died on 28 November 2020, before the application could be made.
Mario and Vince were granted letters of administration in Joseph Senior's estate on 18 February 2021.
Roberto is the executor of Nadia's will. A grant of probate was issued to him on 23 March 2021.
Leon, Samantha and Joseph have made an application pursuant to s 29 of the Administration Act 1903 (WA) to have Mario and Vince removed as the administrator of Joseph Senior's estate.[2] That, and associated issues, has been referred by the agreement of all parties, to mediation.[3]
[2] The application was made by letter dated 16 August 2021 addressed to Registrar Griffin.
[3] Order of Registrar Griffin in The Estate of Joseph Musca deceased (Supreme Court of Western Australia, PRO 6999/2020, 28 September 2021).
Submissions and evidence
Mario and Vince, and Roberto have filed submissions in respect of the application.[4] Roberto has filed a supporting affidavit of James Steedman sworn 5 October 2021 (Steedman Affidavit).[5]
[4] Administrators' submissions filed 5 October 2021 ('Administrators' submissions'); Submissions of Mr R D'Agostino in his capacity as executor of the estate of Nadia D'Agostino filed 5 October 2021 ('D'Agostino submissions').
[5] Affidavit of James Devon Steedman sworn 5 October 2021 ('Steedman Affidavit').
Legal basis
Access to documents on a probate file is governed by both the Non‑contentious Probate Rules 1967 (WA) (NCPR) and the Rules of the Supreme Court 1971 (WA) (RSC).
Rule 3(1) NCPR provides, among other things, that the RSC and the general practice of the court apply, so far as may be practicable, to proceedings to which the NCPR relate, but only to the extent that the Administration Act or the NCPR do not otherwise provide.
Order 67B r 7(2) RSC provides that unless a party's access to information, record or a thing is restricted, a party to a proceeding is entitled to have access to a filed document. Order 67B applies to 'any proceeding in a probate action'.[6] As matters in dispute have been referred for mediation, pursuant to the application made by Leon, Samantha and Joseph, I am satisfied that there is a 'proceeding' on foot within the meaning of the rule.
[6] RSC O 67B r 1(1); r 2(1).
Rule 43A(d) NCPR provides that the Registrar may grant leave to a person to obtain a 'copy of any other document'.
Mario and Vince accept the applicability of r 43 NCPR, and cite De Haas v Murcia and Associates[7] as authority for the proposition that a 'very cogent reason' must be shown before a [probate] document should be released. They say that Roberto has not demonstrated such a reason.
[7] De Haas v Murcia and Associates (Unreported, WASC, 14 September 1998) ('De Haas'), quoted in Administrators' submissions [4].
Mario and Vince point also to Hearne v Street[8] as authority for the proposition that where documents are released under compulsion, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence, which is often referred to as the 'implied undertaking' against collateral use.
[8] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [96], quoted in Administrators' submissions [5].
Cogent reasons
In De Haas, the application for access to a statement of assets and liabilities of a deceased estate was made by the firm of solicitors acting for persons who had a claim against the estate. They wished to put the executors on notice of the claim, to ensure that the assets of the estate were not dissipated prior to resolution of the action.
His Honour Templeman J referred to commentary upon O 67 r 11 RSC (now superseded).[9] That rule relevantly provided that access to documents could be granted:
(1)…
(a) …
(b) …
(c) …
(d)with the leave of the Court or a Registrar, any other document other than an agreement lodged with or registered by the commissioner of workplace agreements.
[9] De Haas 5.
His Honour noted that subparagraph (d) was substantially similar to r 43A(d) of the NCPR, and observed that the commentary to Civil Procedure (at the time, referred to as Seaman) stated:
Rule 11(1) specifies those documents which members of the public are entitled to search, inspect or copy. In practice, a Registrar may also grant leave to search, inspect or copy other documents, provided that very cogent reasons are provided. A letter is usually a sufficient form of request.[10] (His Honour's emphasis)
[10] De Haas 5.
The RSC have changed since then, and the publication formerly colloquially known as 'Seaman' is now called 'Civil Procedure Western Australia'. The equivalent rule for access to documents is O 67B. There is no direct successor to O 67 r 11. The rules regarding access to probate documents are O 67B r 6(2) item B of that rule's table and O 67B r 6(3) item C of that rule's table, in addition to O 67B r 7(2) with respect to proceedings in a probate action. There is no commentary with respect to any of these rules.
There is very little guidance as to what constitutes a 'cogent reason'.
The situation in De Haas is distinguishable from the present situation. The person seeking access in the present situation is the executor of the will of a beneficiary of an intestate estate. Probate litigation is interest litigation. A beneficiary (or their legal personal representative) has a relevant interest.
I also note that in De Haas, his Honour was:
… invited to make a more general statement as to the proper practice and procedure in relation to applications pursuant to r 43A(d). However, I decline to do so on the hearing of a matter which is essentially ex parte. It seems to me that such wider considerations need to be addressed in full argument inter partes.[11]
[11] De Haas 9.
Nadia - a beneficiary of Joseph Senior's estate
Nadia was, and her executor in that capacity is, a beneficiary of Joseph Senior's intestate estate. That, without more, is in my view a 'very cogent reason' such as to authorise the release of the Musca Affidavit to Roberto.
Other considerations
There is more to consider.
Roberto submits that Mario and Vince obtained letters of administration of Joseph Senior's estate on the basis that they were creditors of the estate.[12] The debt said to be owed (as evidenced by the r 9B statement annexed to the supporting affidavit of Mario and Vince sworn 10 December 2020) was for funeral costs which Roberto submits, and I accept, self-evidently could not have been owing at the time of death.[13]
[12] D'Agostino submissions [13].
[13] D'Agostino submissions [13].
Correspondence between Roberto's lawyers and Mario and Vince's lawyers led to Mario and Vince's lawyers stating that a correcting affidavit would be filed. That is the Musca Affidavit to which Roberto seeks access.
The Musca Affidavit goes directly to the issue of whether Mario and Vince are creditors of Joseph Senior's estate and thus entitled to administration.
Mario and Vince contend that at common law funeral expenses are a priority charge on the estate, and that an executor's liability in this regard exists even where the executor did not order the funeral and did not receive assets sufficient to cover the expenses, citing Sharp v Lush[14] (Sharp). Sharp was an application by an executor (appointed under the will) as to whether certain expenses, including warehousing of furniture that was part of specific legacies and the costs of the action of having that question determined, should be paid from the general residue of the estate. It was not a case about whether an executor's liability to pay funeral expenses provided sufficient standing to ground an application for administration as a creditor of the estate.
[14] Sharp v Lush (1879) 10 Ch D 468, 472, cited in Administrators' submissions [6].
Sharp has been applied in two subsequent decisions: In re Collins' Will Trusts,[15] which was with respect to the question of whether the costs of storage and insurance of certain items the subject of specific legacies should be borne by the legatees or the residue, and also In re Eleanor Taylor's Estate and Will Trusts,[16] with respect to the question of whether a summons to determine application of assets should be borne by the undisposed share of the assets or by the residue. I mention these decisions as Sharp did not decide the issue which may fall to determination in this instance, and has not been subsequently applied, considered or overruled in that light.
[15] In re Collins' Will Trusts [1971] 1 WLR 37.
[16] In re Eleanor Taylor's Estate and Will Trusts[1969] 2 WLR 1371.
If Sharp is authority for the proposition for which Mario and Vince contend, then they are creditors of the estate. If it is not, then Mario and Vince must establish their status as creditors of the estate as arising from other debts owed to them, or their right to administration generally, in some other way.
Mario and Vince submit that if Roberto intends to use the Musca Affidavit for a collateral purpose, namely in support of an application to remove them as administrators, then it would be improper.[17]
[17] Administrators' submissions [8].
Two issues arise on that submission; first, that whilst there is an application on foot to remove Mario and Vince as administrators, it is made by Leon, Samantha and Joseph, not by Roberto. Second, I am not persuaded that such use would constitute an improper purpose. If Nadia were alive, she would, in my view, be entitled to the Musca Affidavit and to take such steps as she considered necessary if she wished to have Mario and Vince removed as administrators. She was Joseph Senior's wife. Roberto, as the executor of her will, is, pursuant to s 8 of the Administration Act 1903 (WA), now vested with all her real and personal estate:
Upon the grant of probate or administration, all real and personal estate which a deceased person dies seised, possessed of, or entitled to in Western Australia shall, as from the death of such person, pass to and become vested in the executor to whom probate has been granted, or administrator for all the estate and interest of the deceased therein in the manner following, that is to say -
(a)on testacy or on partial intestacy, in the executor or administrator with the will annexed; and
(b)on intestacy, in the administrator.[18]
[18] Administration Act 1903 (WA) s 8.
I do not agree that it would be improper for Nadia, or for her legal personal representative, to use the Musca Affidavit to apply for removal of Mario and Vince as administrators.
If I am wrong as to that, and such use was improper, such use would be a breach of the implied undertaking, which is a substantive legal obligation imposed upon parties.[19] Mario and Vince would be entitled to object to the use of the Musca Affidavit as a basis for an application by Roberto for their removal as administrators of Joseph Senior's estate.
[19] Hearne v Street.
I reiterate that no such application has been made by Roberto at this point, and such application as has been made by Leon, Samantha and Joseph, has been made without reference to the Musca Affidavit. It may be that Roberto on the one hand, and Leon, Samantha and Joseph on the other, have competing interests as to the administration of Joseph Senior's intestate estate. Regardless of that contest, Mario and Vince must establish that as against any of those persons, they have the superior claim. I infer that the Musca Affidavit assists in establishing that claim as, presumably, it was filed to support it.
Conclusion
It follows that Roberto should be granted access to the Musca Affidavit.
Costs
The parties have not made submissions as to the costs of this application.
Whilst costs would ordinarily follow the event, given the mediation which has been ordered and the complex issues which I anticipate will be addressed at the mediation, I propose to reserve the question of the costs of this application to the outcome of the listed mediation.
The parties are requested to advise my associate within 7 days if they wish to be heard as to the costs of the application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
Associate
9 NOVEMBER 2021
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