Galati as executor of the estate of CARMELA Galati v Galati [No 2]

[2025] WASC 398

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   GALATI as executor of the estate of CARMELA GALATI -v- GALATI [No 2] [2025] WASC 398

CORAM:   REGISTRAR FATHARLY

HEARD:   ON THE PAPERS

DELIVERED          :   22 SEPTEMBER 2025

PUBLISHED           :   22 SEPTEMBER 2025

FILE NO/S:   CIV 2353 of 2023

BETWEEN:   NANCY CAROLINA GALATI as executor of the estate of CARMELA GALATI

First Plaintiff

MARIA SIRAGUSA as executor of the estate of CARMELA GALATI

Second Plaintiff

AND

SEBASTIANO GALATI

First Defendant

ANTONINO GALATI

Second Defendant

PASQUALINO VINCENZO GALATI

Third Defendant

NANCY CAROLINA GALATI

Fourth Defendant

MARIA SIRAGUSA

Fifth Defendant

Catchwords:

Application for production of discovered documents – Objections to produce – Claimed legal professional privilege – Without prejudice privilege - Claimed irrelevance – Redaction - Order 26 r 9 Rules of the Supreme Court 1971 (WA)

Application for Court to inspect unredacted copies of documents to determine whether production of unredacted copies should be ordered – Order 26 r 12(2) Rules of the Supreme Court 1971 (WA)

Legislation:

Rules of the Supreme Court (WA) 1971, O26 r 9 & r 12(2)

Result:

Unredacted copies of documents inspected
Production of documents the subject of claimed objections ordered

Category:    B

Representation:

Counsel:

First Plaintiff	:	No appearance
Second Plaintiff	:	No appearance
First Defendant	:	No Appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No Appearance
Fifth Defendant	:	No Appearance

Solicitors:

First Plaintiff	:	Palmos Legal
Second Plaintiff	:	Palmos Legal
First Defendant	:	In Person
Second Defendant	:	Weeks & Co
Third Defendant	:	Weeks & Co
Fourth Defendant	:	In Person
Fifth Defendant	:	Metaxas Legal

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

Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49; [1999] HCA 67

Galati v Galati [2024] WASC 470

Grant v Downs [1976] HCA 63 (1976) 135 CLR 674

Schreuder v Murray [No 2] (2009) 41 WAR 169, [2009] WASCA 145

Sino Iron Pty Ltd v Mineralogy [No 5] [2025 WASC 35

Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 25] [2024] WASC 132

REGISTRAR FATHARLY:

Applications arising from production objections

1. Reasons for decision in these proceedings in Galati v Galati [2024] WASC 470[1] (Discovery Reasons) and orders for the plaintiffs to give specific discovery on oath made 6 December 2024 (Discovery Orders) have not fully resolved an ongoing interlocutory dispute between the parties. The Discovery Reasons set out the background to, significance of, and contest about the relevance or discoverability of the documents. They should be read in conjunction with these reasons.

   [1] Galati v Galati [2024] WASC 470.

2. Two further applications have arisen for my determination:

   (a)an application filed by the second and third defendants on 11 March 2025 for the inspection of documents pursuant to O 26 r 9 of the Rules of the Supreme Court 1971 (WA) (RSC) (Defendants' Application); and

   (b)an application the subject of the first and second plaintiffs' minute of proposed orders filed 24 March 2025 pursuant to O 26 r 12(2) RSC for the Court to inspect unredacted copies of documents the subject of Part 1B objections in the plaintiffs' affidavits of discovery, and for determination as to whether those documents must be produced unredacted (Plaintiffs' Application).

3. For the reasons set out, I have determined it necessary and appropriate to inspect and consider the documents the subject of the Plaintiffs' Application, in order to determine the Defendants' Application. I have further determined that production should be given of the documents the subject of the Defendants' Application.

Discovery issues

1. The Plaintiff executors obtained the written opinion of senior counsel (Counsel) as to the proper construction of cl 6(a) and the cl 8(b) residuary clause of the deceased's will. The need for opinion arose from the subdivision of a single parcel of land the subject of the provision to the fourth and fifth defendants by cl 6(a), that is the plaintiffs in their beneficiary capacity, and sale of certain lots, between the date of the will and death of the deceased.

2. The Final Advice is attached to an Affidavit of Henry David Playford sworn 27 February 2024 filed in these proceedings. It is referred to and relied upon in the Plaintiffs' Submissions filed in support of the originating summons on 11 April 2024.

3. The Discovery Orders required specific discovery by the plaintiffs of Drafts of Advice, the Final Advice, and any instructions, documents and information communicated between Counsel and any solicitors for the plaintiffs up to and including 14 July 2023 in relation to the Drafts of Advice and Final Advice specified in the orders.

4. Discovery on oath was required by 21 January 2025 to verify a list of documents that are or had been in the plaintiffs' possession, custody or power. Subsequent disputes arose as to whether there had been compliance with the Discovery Orders and objection to production arising from claims of privilege and irrelevance.

Discovery affidavits

1. Three affidavits were filed for the plaintiffs verifying an identical list of documents (List) to comply with the Discovery Orders. The List comprised 59 documents over which objections were made to production of five documents within Part 1B. Four of those were subject of objection unless produced in redacted form.

2. The first discovery affidavit was the Affidavit of Matthew Ian Handcock sworn 20 January 2025.  Mr Handcock, a legal practitioner, is not a party and is not a solicitor on record in these proceedings. He had instructed and provided documents and information to Counsel to prepare the advice and communicated about the issues such that many documents were his notes or his communications with Counsel.

3. As the requirements of O 24 r 4 RSC had not been complied with as to the party being required to swear the affidavit, orders 4 February 2025 required each plaintiff personally to give discovery on oath in compliance with the Discovery Orders, then conferral as to any issues arising out of privilege claims and redaction, and for the defendants to make any application in writing supported by affidavit with proposed orders.

4. As each of the first plaintiff's and second plaintiff's affidavits filed 18 February 2025, sworn 10 February 2025 and 5 February 2025 respectively, verified the same List, it is convenient to refer to the claims by reference to documents and their number without express distinction between affidavits.

5. Part 1A of the List included documents 9, 17, 18 and 20 and 23.

6. In Part 1B of the List, objection to production of documents 9, 17, 18, and 20 in unredacted form was based upon being irrelevant[2] and the subject of legal professional privilege. Objection to production of the entirety of document 23 was based upon without prejudice privilege and legal professional privilege.

   [2] Order 26 r 1B(1)(b) RSC.

7. Conferral[3] failed to resolve any issues or even to agree programming for a hearing to determine whether production should be ordered of the Part 1B documents.

   [3] Memorandum pursuant to O 59 r 9(1) RSC filed 11 March 2025.

8. The circumstances stated in the Discovery Reasons with respect to instructions to Counsel over time with apparent changes of instructions and consequential amendment to the advice prepared, has led to the unusual circumstances of the defendants seeking access to unredacted copies of the communications between the executors' solicitor and Counsel providing the advice for which certain objections have been made.

Application documents

1. While listed for a case management hearing on 25 March 2025 but not the subject of programming to be fully argued at that time, extensive documents were filed by the parties.

2. The Defendants' Application was supported by the Affidavit of Charles Mark Dallimore affirmed 10 March 2025 attaching redacted copies of all of the discovered produced to the defendants and numerous communications between solicitors in these proceedings, totalling 256 pages. A further Affidavit of Charles Mark Dallimore affirmed 25 March 2025 attached a transcript of a case management hearing on 4 February 2025 and further email chains.

3. The Defendants' Application was opposed by the plaintiffs but the subject of proposed orders filed 24 March 2025 for the consideration by the Court of the unredacted copies of documents 9,17,18, 20 and 23, with the issue of whether the documents referred to are to be disclosed without masking or redaction to be determined on the papers.

4. The Affidavit of Henry David Playford filed 24 March 2025 for the plaintiffs attached copies of communications regarding conferral and relating to the substance of the application.

5. Given the volume of material and desirability of avoiding further submissions and need for appointment to further argue the issues, the applications were to be determined on the papers without further materials.

Plaintiffs' Application

1. It is convenient to consider firstly the Plaintiffs' Application pursuant to O 26 r 12(2) RSC for the Court to inspect unredacted copies of documents the subject of Part 1B objections in the List.

2. By O 26 r 1B RSC, documents that are not wholly discoverable must be produced but may be redacted or masked. That may be due to information within a discovered document that is not related to the matter in question in the cause or matter, or information that the party objects to producing.

3. Rule 1B(2) requires that if that occurs, amongst other requirements, Part 1B of the list of documents discovered must list the document, identify the document as one that contains hidden information, state why the information is hidden, and if the party objects to producing any of the hidden information, the grounds for objecting. The discovery forms are to be modified accordingly.

4. Inspection by the Court of unredacted copies was proposed by counsel for the plaintiffs to enable the Court to inspect the documents to which production is objected so as to determine the objections on the ground of privilege.

5. If there is a legitimate basis to redacting parts of the document that are not related to a matter in question in cause or matter, parties to proceedings giving inspection of discovered documents may hide irrelevant parts.[4] The defendants' submissions in that regard provide a useful summary and consideration of relevant authorities.

   [4] Sino Iron Pty Ltd v Mineralogy [No 5] [2025 WASC 35 [19] ‑ [20].

6. The requirement for claims of privilege in the list of documents is to provide a sufficient statement of the grounds of privilege,[5] the communication over which the communication is claimed, and the facts relied upon as giving rise to the privilege in sufficient detail to test the claim for privilege without disclosure of the substance. It is not established by the use of a formulaic or template description of the communication over which privilege is claimed.[6]

   [5] Order 26 r 4(2) RSC.

   [6] Defendants' submissions [29], citing Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 25] [2024] WASC 132 [129] in turn citing Schreuder v Murray [No 2] (2009) 41 WAR 169, [2009] WASCA 145 [64] Grant v Downs [1976] HCA 63 (1976) 135 CLR 674, 689 and Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49; [1999] HCA 67 [52].

7. The objections stated within Part 1B of the List are brief. They specify simply two particular bases for objection with respect to each document. While the objection is as to the whole of document 23, the objection is as to an unredacted version of the documents 9, 17, 18 and 20.  It is not apparent whether both grounds are relied upon for each document or they are relied upon in the alternative. If in the alternative, it is not identified which parts are subject to particular objection redactions. There are no facts or information upon which claims may be tested and it was not known until production of redacted versions what portions of the documents were subject to objection.

8. The difficulty arising is that the parties have consequently engaged in a dispute about what is redacted and the basis of the redactions. Rule 12 enables the party requiring production to traverse privilege claims as being unfounded or mistaken by evidence, for which that may necessitate inspection by the Court, but without adequate basis specified for the claims it is difficult to do so.

9. The full basis for objection is not within the List but rather to be found in a letter from the plaintiffs' solicitors to the defendants' solicitors on 5 March 2025.[7] They have been considered. The nature of each production objection is further considered below.

   [7] Affidavit of Henry David Playford sworn 24 March 2025, attachment HDP‑2.

10. The context in which the documents were created is relevant to both applications:

    (a)Probate of the will was granted to the plaintiffs on 26 February 2020.

    (b)Plaintiffs' counsel submitted with respect to the discovery application determined previously[8] that the plaintiffs did not include the advice in their initial supporting affidavit, that it is not strictly essential to be in evidence as it is just an opinion, and although it may assist the Court the Court is not bound to adopt it. Counsel submitted that the plaintiff's initial affidavit was likely to be sufficient itself for the construction application.

    (c)The Affidavit of Maria Siragusa filed 29 November 2023 being the initial affidavit, specified that in early 2023 Effective Legal were assisting the executors in relation to the administration of the estate, advised the executors that there was some doubt about the proper construction of cl 6 and cl 8(a) and recommended they obtain a written opinion from senior counsel addressing three specified issues. Instructions were provided to Counsel to provide that opinion.[9]

    (d)Attached to the Affidavit of Maria Siragusa filed 29 November 2023 are the Supplementary Affidavit of Maria Siragusa and of Nancy Carolina Galati sworn 5 June 2020 to update and correct information filed by their 24 January 2020 affidavit, also attached, both in relation to probate.

    (e)Both probate affidavits were shown to have been prepared by Effective Legal for the executors. The Supplementary Affidavit referred to Effective Legal having managed various property settlements for a subdivision development being undertaken on behalf of the deceased prior to the date of death, and to advice provided to the executors about estate assets and liabilities needing to be the subject of updated statement attached.

    (f)Document 10 in the List is an email Mr Handcock sent to Counsel as a Director of Effective Legal on 17 September 2020 stating that he acted for the executors, providing a brief for opinion as to the proper interpretation of cl 6(a) of the will.[10] Within it reference was made to a recent conference.

    (g)Document 9, partly redacted and the subject of certain objections, are Mr Handcock's notes from his meeting with senior counsel dated 8 September 2020.

    [8] Galati v Galati [2024] WASC 470 [44].

    [9] Affidavit of Maria Siragusa sworn 29 November 2023, [20] ‑ [23].

    [10] Affidavit of Charles Mark Dallimore affirmed 10 March 2025, Attachment CMD‑3.

11. Privilege and objection to production was not claimed to be an issue in relation to hearing the subject of the Discovery Orders and Discovery Reasons. The plaintiffs' counsel had then submitted that the specific discovery application had nothing to do with legal professional privilege,[11] and that the plaintiffs had obtained advice of Counsel, providing it to the beneficiaries to seek confirmation as to whether unanimous agreement could be achieved as to the proper distribution without construction proceedings being required.

    [11] Plaintiff's Outline of Submissions filed 7 June 2024, [48].

12. Relevantly, the Final Advice is filed and content of it referred to by the plaintiffs in the proceedings. Disputes as to relevance or admissibility for determination of the construction proceedings are matters for consideration by the judicial officer in the context of that hearing.

13. What is not in dispute now is that the documents have been discovered. They fall within the classes of documents the subject of the Discovery Orders at least in part.

14. The context in which the documents were created was in the process of the solicitors for the plaintiff executors providing instructions to Counsel to obtain advice for the executors. If advice was obtained by the executors for guidance as to the proper administration of the estate, for which joint privilege should exist,[12] and the Final Advice was provided to the beneficiaries prior to these proceedings and filed in these proceedings, prima facie legal professional privilege arguments should not exist.

    [12] The subject of submissions and authorities cited in Galati v Galati [2024] WASC 470 [38].

15. If advice was provided to the executors the subject of conferral between their solicitor and Counsel or correspondence which bears upon the proper administration of the estate or which may bear upon the proper construction taking into consideration surrounding circumstances, it is difficult to see the basis upon which the executors should have a basis to object based upon legal professional privilege or relevance.

16. Both the executors and the beneficiaries have an interest in advice relating to the proper administration of the estate and documents .

17. To the extent that the role of the executors is and was neutral, and that the fees of senior counsel were payable from the estate of the deceased and proper estate expenses, there remains a question of why there would be a claim for legal professional privilege and potentially without prejudice privilege or relevance issues.

18. To answer the question as to whether a proper basis exists for the claims of privilege stated in Part 1B of the List, inspection by the Court of the documents in unredacted form is necessary and appropriate. Unredacted copies were provided to the Court by the plaintiffs' solicitors for that purpose and have been considered in determination of the privilege claims.

19. Pursuant to O 26 r 12(2) RSC, the documents have been inspected unredacted and compared to the redacted documents.

Should the documents be produced?

Document 9

1. Document 9 is a copy of handwritten notes of a meeting between Mr Handcock and Counsel on 8 September 2020.

2. While parts are written in abbreviated form,[13] the substance of the note appears to record, in the form produced to the defendants:

   [13] Where possible, apparent abbreviations or references referred to in square brackets for the purpose of these reasons.

   8/9/20

   10.35am ‑ 12pm

   1. Opinion on the [interpretation] of the will.

   [REDACTION 1]

   3. Distribution Plan – [interpretation] of the will, do they agree, get directions – no time limit

   [REDACTION 2 (page 1 and 2)]

   [REDACTION 3]

   [Interpretation] will is first issue 2015 WASC 18 Nancarrow

   [REDACTION 4]

   PLAN- 1. Opinion – interpretation, 2. Assess – inform [beneficiaries], 3. Directions – if controversy.

   [REDACTION 5]

   Will send BRIEF to [Counsel]

3. The unredacted version has been considered in the context of the objections to production.

4. To the extent that the Redactions 1 and 2 in Document 9 are claimed to be the subject of legal professional privilege, and not falling within the scope of the Discovery Orders, Draft Advice or Final Advice, it is apparent that:

   (a)The file note was stated to be prepared for the dominant purpose of Mr Handcock giving legal advice to the executors, advice privilege being claimed by them.

   (b)Reference is made within the redacted notes to legislative provisions relevant to contemporaneous matters the fact of which was known to the executors and beneficiaries.

   (c)The extent to which any such notes may have been related to impact upon distribution, if noted by Mr Handcock for the executors to understand the proper matters for consideration, and to inform their obligations or matters to be addressed, the beneficiaries would have a proper interest.

   (d)There is minimal information or advice, the brevity consistent with the other notes.

   (d)I am not satisfied that there is an apparently proper basis upon which the information is redacted and subject of objection to production to the defendant beneficiaries on the basis of legal professional privilege.

   (e)To the extent that the memorandum is a record of matters discussed and provides the background to the brief to provide advice, issues referred to are in the nature of matters the executors would need to properly consider.

1. To the extent that the Redactions 3 to 5 in Document 9 are claimed to be the subject of privilege and not falling within the scope of the Discovery Orders, Draft Advice or Final Advice, it is apparent that:

   (a)The file note was stated to be prepared for the dominant purpose of Mr Handcock giving legal advice to the executors, advice privilege being claimed by them.

   (b)Redaction 3 is not clear in meaning other than in relation to a distribution plan.

   (c)Redaction 4 raises issues which may have been considerations to make at the time and informed by other unredacted content of the document. As there is potential for those matters to be further addressed as current or future estate issues I have not expressly repeated their nature but there remains common interest.

   (d)Redaction 5 as the last item of the plan is simply a reference paying creditors. It is an entirely usual part of administration to pay any remaining creditors prior to sale or distribution of assets. The item is no more than an item on the list.

   (e)The extent to which any such notes may have been related to construction of the will and impact upon distribution, if noted by Mr Handcock for the executors as executors in understanding the proper matters to consider and inform obligations or matters to be addressed, the beneficiaries have a proper interest.

   (f)There is minimal information or advice, the brevity consistent with the other notes.

   (g)I am not satisfied that there is an apparently proper basis upon which the information is redacted and subject of objection to production to the defendant beneficiaries on the basis of legal professional privilege.

   (h)To the extent that the memorandum is a record of matters discussed and provides the background to the brief to provide advice, issues referred to are in the nature of matters the executors would need to properly consider.

2. To the extent it is claimed the redacted parts of Document 9 are irrelevant pursuant to O 26 r 1B(1)(b), the extent to which the document is relevant and admissible is properly to be made by the judicial officer hearing the construction summons if the document is before the Court for that purpose. However the need for the advice, the process and considerations for proper estate administration with the matters referred to in Document 9 including at Redaction 4, may be considerations arising in the context of the construction hearing.

3. I am not satisfied that there is a proper basis for the redactions on either of the stated grounds.  Document 9 should be produced in unredacted form.

Document 17

1. Document 17 is a memorandum written by Mr Handcock being notes of a meeting with Counsel on 13 January 2021 in similar form to the Document 9 memorandum.

2. Similar objections to production are taken with Document 17 and Document 9, with the exception that with respect to Document 17 a further objection based upon litigation privilege was claimed in respect of some redactions arising from commencement on 25 August 2020 of CIV 1894 of 2020 against the executors by the applicant defendants in the current proceedings not expressly referenced in the List.

3. While some aspects of the redactions might be explained by the commencement of the 2020 proceedings involving the same parties, they were finalised in 2022.

4. To the extent that the Redactions 1 and 2 in Document 17 on page 1 are claimed to be the subject of legal professional privilege it is not clear to what extent notes made are part of advice given, or notes by Mr Handcock for further consideration, or both, in relation to issues discussed.

5. A consideration for the executors noted was whether the question of conflict and other matters apparently relevant at the time.

6. Having considered the two redactions to Document 17, and for the same reasons as stated with respect to Document 9, in addition to which the 2020 proceedings having been finalised, I am not satisfied that there is a proper basis for the redactions on any the stated grounds. Document 17 should be produced in unredacted form.

Document 18

1. Document 18 is a memorandum written by Mr Handcock being notes of a meeting with Counsel on 19 January 2021 in similar form to the Document 9 and 17 memoranda.

2. Similar objections to production are taken as with Document 17.

3. While some aspects of the redactions might be explained by the commencement of the 2020 proceedings involving the same parties specifically on page 1, they were finalised in 2022. The redaction on page 2 is no more than a usual administration issue to be attended to.

4. Having considered the two redactions to Document 18, and consistently with the reasons as stated with respect to Documents 9 and 17, I am not satisfied that there is a proper basis for the redactions on any the stated grounds. Document 18 should be produced in unredacted form.

Document 20

1. Document 20 is a memorandum written by Mr Handcock being notes of a meeting with Counsel on 28 April 2021 in similar form to the Document 9, 17 and 18 memoranda.

2. Similar objections to production are taken as with Document 17 and Document 18.

3. While some aspects of the redactions might be explained by the commencement of the 2020 proceedings involving the same parties, they were finalised 11 July 2022 by consent only six days after the executors filed an appearance.

4. The redactions mask brief notes relating to a mixture of matters generally as to estate administration matters, then current proceedings, and future proceedings which may be required relating to the will.

5. Having considered the redactions to Document 20, and consistently with the reasons as stated with respect to Documents 9, 17 and 18, I am not satisfied that there is a proper basis for the redactions on any the stated grounds. Document 20 should be produced in unredacted form.

Document 23

1. Document 23 is an email from Mr Handcock to Counsel 10 March 2022. It is discovered as such and forms part of an email chain between them relating to the will interpretation commencing 2 March 2022 to obtain Counsel's updated and final written advice on the proper interpretation of the 'Lot 2 gift'.[14]

   [14] Affidavit of Charles Mark Dallimore affirmed 10 March 2025, Attachment CMD‑14; document 21 in Part 1A of List.

2. The response from Counsel of 4 March 2022[15] is confirmation that it will be finalised without need for a further conference unless issues arise. Document 23, completely redacted, is Mr Handcock's reply. That is apparent from the description in Part 1A of the List and it falling within the unredacted documents.

   [15] Affidavit of Charles Mark Dallimore affirmed 10 March 2025, Attachment CMD‑15; document 22 in Part 1A of List.

3. In that context, it is unusual that the entirety of Document 23 is redacted including who it was sent from and to, the date, time, subject matter and the entirety of the signature and footer of the email in addition to the content.

4. Production of the entire document is the subject of claim of without prejudice privilege and legal professional privilege. Unlike the other documents, it is not claimed to be irrelevant.

5. The basis upon which it was claimed to be the subject of legal professional was not specified in Part 1B of the List.  The letter of 5 March 2025 from the plaintiffs' solicitor to the defendants' solicitor makes reference to redacted portions not falling within the scope of order 1(a) or 1(b) of the Discovery Order. Having considered the unredacted version of Document 23, I do not accept that that is the case. 

6. The Discovery Order defined Drafts of Advice. All drafts and incomplete versions however described and of any date of the document which in the final form comprised attachment 'HD-1' to the Affidavit of Henry David Playford sworn on 27 February 2024 and filed in the proceedings (the Final Advice) were to be discovered by order 1(a). Any instructions, documents and information communicated between Counsel and any solicitors for the plaintiffs up to and including 14 July 2023 in relation to the Final Advice and Drafts of Advice were required to be discovered by order 1(b).

7. If Document 23 was not a document falling within the scope of the Discovery Order, it is curious that it was discovered pursuant to the orders.

8. The unredacted document of itself shows that it is a direct response to Counsel's email of 4 March 2022, also bearing the heading 'Re: Galati Estate – Will interpretation'. It is a document falling within order 1(b). 

9. Document 23 expressly refers to the apparent appropriateness of flagging the possibility of an application being made for directions for proper interpretation of the will. In that context it refers to a meeting to occur one week later.

10. The first two sentences of Document 23 are not privileged as against the beneficiaries and the matters are expressly referred to after the event in an email of 28 March 2022[16] Any privileged that existed was waived in the context of the meeting referred to in the 28 March 2022 email and by that email itself, discovered in unredacted form.

    [16] Affidavit of Charles Mark Dallimore affirmed 10 March 2025, Attachment CMD‑17; document 26 in Part 1A of List.

11. The significance of Document 23 is as to the meaning of the email from Counsel to Mr Handcock 11 March 2022 in which it states, 'Yes, this still accords with my preliminary view.'[17] The preliminary view being affirmed is entirely redacted in Document 23. In attempting to understand the drafts of advice or final advice, and evolution of any changes to the drafts before finalisation, it is important for the defendants to understand in the context of provision of the advice what the preliminary view was.

    [17] Affidavit of Charles Mark Dallimore affirmed 10 March 2025, Attachment CMD‑16; document 24 in Part 1A of List.

12. The statement in Mr Handcock's email is that he proposed, on a without prejudice basis, to indicate that the executors took a particular view, as specified in the email, as to construction of the will as previously discussed between Mr Handcock and Counsel. Request was made to Counsel as to whether that still accorded with his preliminary view, and for which formal written advice was not required before the meeting the following week.

13. Two comments may be made about the statement. 

14. Firstly, the reference in the document was not a without prejudice communication itself but a statement of what was proposed to be indicated on behalf of the executors to other beneficiaries.  To the extent that counsel's preliminary view was to that effect, as apparently confirmed by the subsequent email, not only does it fall within the scope of the Discovery Orders but it goes to a central matter for consideration and directions to be provided by the Court as to the proper construction.

15. Secondly, irrespective of whether the preliminary view was later intended to be conveyed on a without prejudice basis or otherwise, it was the subject of correspondence about advice for the executors. It was being obtained for and on behalf of the executors and beneficiaries and for which they had a proper interest. The Final Advice was provided to the beneficiaries to determine whether these proceedings might be avoided.

16. Both the defendants and the Court must have an opportunity to be satisfied that the material giving rise to the Final Advice being placed before them for consideration was and is provided in context and with fulsome disclosure to enable it to be understood. It will avoid any injustice. Had that occurred more generally it may have avoided significant disputes between the parties giving rise to ongoing suspicion about lack of information and lack of documents provided.

17. Further, the basis upon which it was claimed to be the subject of without prejudice privilege was not specified in Part 1B of the List.  The letter of 5 March 2025 from the plaintiffs' solicitor to the defendants' solicitor makes reference to redacted portions containing a reference by the executors' solicitor, Mr Handcock, to proposed without prejudice communications.

18. The disclosure of a matter over which there is a proper basis for without prejudice privilege relates to without prejudice attempts to settle a dispute. To the extent that was the case with proposed disclosure of the preliminary view, that goes to an issue of joint privilege between the parties as to whether any proposal to settle is not admissible, and as to joint interest in the subject matter of the advice in the proper administration of the estate.

19. If the preliminary view was as noted in Document 23, it was a matter of significance to the beneficiaries going to the distribution of the estate under the will.

20. I am not satisfied that that there is a proper basis for either ground of objection to production arising from without prejudice privilege or legal privilege with respect to Document 23.

21. Production of Document 23 unredacted is necessary and appropriate to fairly deal with the matter the subject of the proceedings, for saving costs, and in the interests of justice to enable the proper construction of the will.

Orders

1. Having inspected the documents in accordance with the Plaintiffs' Application so as to consider claims for privilege raised by the plaintiffs in their objections to production, I have determined that the objections should not be maintained and that the documents should be produced unredacted.

2. Accordingly, orders will be made for the plaintiffs to produce to the defendants by 30 September 2025 unredacted copies of each of the documents in Part 1B of the List, being Documents 9, 17, 18, 19, 20 and 23.

3. The defendants have been successful in their application.  The plaintiffs, as executors, have opposed the orders in the Defendants' Application and it necessitated the Plaintiffs' Application for consideration of the documents in unredacted form. The parties should agree or propose minutes relating to costs of the applications within 14 days, following which the costs may be determined, or if considered appropriate, reserved to the judicial officer hearing the construction application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MH

Associate to Registrar

22 SEPTEMBER 2025