Galati v Galati - [2024] WASC 470

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GALATI -v- GALATI [2024] WASC 470
CORAM:   REGISTRAR FATHARLY
HEARD:   10 JUNE 2024 &
FURTHER SUBMISSIONS FILED 11 JUNE 2024 & 17 JUNE 2024

DELIVERED          :   6 DECEMBER 2024
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:

Wills ‑ Originating summons for proper construction of clause in will ‑ Evidence - Senior counsel's advice relied upon in support

Application for specific discovery ‑ instructions and documents giving rise to senior counsel's advice

Testamentary gift - Gift of specific land and interest in the land under will - Land subdivided and some individual parcels of land sold between date of will and date of death - Whether unsold parcels of land and proceeds of parcels of land sold pass to beneficiaries of the specific gift or to the residuary estate - Doctrine of ademption

Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 26 r 7

Result:

specific discovery ordered

Category: B

Representation:

Counsel:

First Plaintiff	:	LCA Palmos
Second Plaintiff	:	LCA Palmos
First Defendant	:	No Appearance
Second Defendant	:	WCJ Zappia
Third Defendant	:	WCJ Zappia
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):

Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475
Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd & Anor [2001] WASC 177
AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234
Boston v Michael John Basioli (as Executor of the Will of Peter Carlo Basioli) & Ors [2004] WASC 205
DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384
Hancock v Rinehart (Trust Documents) [2018] NSWSC 1684
Kenworthy-Groen v Grove & Anor [2021] WASC 364
Kuenen v Robert Leslie Hortin and Adrian Mark Bickford As Executor Of The Estate Of Late Leslie Mervyn Hortin [2024] WASC 152
Perth Airport Pty Ltd v Qantas Airways Ltd [No 2] [2021] WASC 342
Re Borthwick (1948) 1 Ch 645
Schreuder v Murray (No 2) (2009) 41 WAR 169
Thomas v State of New South Wales [2006] NSWSC 380
Versteeg v Versteeg [2008] WASC 142
Walsh v Adrian Cory Sloan as executor of the estate of The Late Laurette Dorothy Keddi [2019] WASCA 107

REGISTRAR FATHARLY:

Summary

These reasons concern the determination of the second and third defendants' chamber summons for specific discovery from the plaintiffs pursuant to O 26 r 7(3) of the Rules of the Supreme Court 1971 (WA) (Discovery Application) arising from executors obtaining senior counsel's opinion.
For convenience, without intending any disrespect, the parties are referred to by their first names as used in the will.
By cl 6(a) of her will dated 26 May 2015, Carmela Galati provided a gift of a specific single parcel of land of five acres in size[1] to her daughters Maria and Carolina.
[1] Including two houses constructed upon the land and some personal effects located there.
On 26 February 2020 probate was granted to Maria and Carolina, the executors appointed under her will,[2] Carmela having died on 23 August 2019 survived by her five adult children.
[2] Affidavit of Maria Siragusa 29 November 2023 attachments 'MS02' grant of probate and 'MS01' copy of will.
Between the date of the will and her death, the land was subdivided into 39 lots with 19 of those lots sold, proceeds of which were paid into an account.
The executors obtained a written opinion of senior counsel as to the proper construction of cl 6(a) and the cl 8(a) residuary clause arising from the subdivision and sale (Advice), which included a recommendation that they apply to the Court for directions as to the proper construction of cl 6(a) absent unanimous agreement of the beneficiaries.[3] The executors provided a copy of the Advice dated 14 July 2023 to each beneficiary under the will.[4]
[3] Affidavit of Maria Siragusa 29 November 2023 pars 20 ‑ 23.
[4] Affidavit of Maria Siragusa 29 November 2023 par 22.
The entitlement to the remaining lots and proceeds under cl 6(a), or under the residuary clause if the gift fails, is at the heart of these proceedings.
Having commenced these proceedings by originating summons (Construction Application), the executors referred to the Advice in affidavits,[5] attached a copy of the Advice to an affidavit[6] and filed submissions in support of the Construction Application by reference to the affidavits, Advice and issues addressed in the Advice.[7]
[5] Affidavit of Maria Siragusa 29 November 2023 pars 20 ‑ 23; affidavit of Henry David Playford 27 February 2024 par 1.
[6] Affidavit of Henry David Playford 27 February 2024 attachment 'HDP‑1'.
[7] Submissions 11 April 2024.
Privilege as to the Advice is not in issue.
The proposed orders are for specific discovery of all documents comprising, regarding, referring to or evidencing, essentially:
(a)all draft or incomplete versions of the Advice (Drafts of Advice) which in final form constituted the Advice;
(b)instructions and information communicated between senior counsel and any solicitors for the plaintiffs in relation to the Advice or Drafts of Advice;
(c)instructions and information communicated between any solicitors for the plaintiffs and the plaintiffs in relation to the Advice or Drafts of Advice.
In the circumstances of this case I have determined that specific discovery should be ordered, but in a more limited form.

Circumstances giving rise to proceedings

The relevant circumstances are set out in more detail in the second plaintiff's affidavit in support of the Construction Application,[8] summarised below.
[8] Affidavit of Maria Siragusa dated 29 November 2023.
Under the will, Maria and Carolina are appointed executors by cl 4(a), beneficiaries of specific gifts by cl 6(a) and two of the residuary beneficiaries under cl 8(a).
Clause 6(a) of the will provides:
I make the following specific bequeaths/requests:
(a)I GIVE to my daughters, Maria and Carolina, all my right, title and interest in the property situate at 29 Yangebup Road, Yangebup, in the said State (also known and referred to as 17 Shallcross Street, Yangebup) and more particularly described as Lot 2 on Plan 6922 in Certificate of Title Volume 1265 Folio 342, along with all my personal belongings in and around the property, as tenants in common in equal shares.
For convenience, the property referred to in cl 6(a) will be referred to in these reasons as the Yangebup Title.
Subject to specific gifts under cl 6, the residuary estate is to be distributed under cl 8(a) to the deceased's five children[9] as tenants in common in equal shares.
[9] The defendants in the proceedings.
The will construction issues arise from the following:[10]
(a)At 26 May 2015[11] the Yangebup Title was a large parcel of land, comprised in one certificate of title, approximately 5 acres in size with two dwellings constructed on it. One dwelling was the old original family home in the south‑eastern corner (Old Dwelling) and the other a more substantial 1993 constructed family home constructed in the north‑eastern corner (New Dwelling) where the deceased resided at the date of her death.
(b)As far as the executors are aware, subdivision of the Yangebup Title was not in the deceased's contemplation at the time of making the will.
(c)In 2017 and 2018 plans of subdivision[12] were prepared to subdivide the Yangebup Title and also a separate adjacent lot, lot 1, intended to be subdivided at the same time as part of a broader estate development.
(d)In April 2018 the Yangebup Title was subdivided into 39 separate lots.
(e)At the date of her death on 23 August 2019, the deceased had sold 19 of the 39 lots, the proceeds of which had been paid into a bank account in her name, the remaining 20 unsold lots remaining registered in her name.
[10] Summarised from Affidavit of Maria Siragusa 29 November 2023 pars 11 ‑ 17.
[11] The date of the will.
[12] Attachment 'MS04'.
The executors' solicitors assisting with administration of the estate,[13] having raised some doubt as to the proper construction of cl 6(a) and cl 8(a), recommended and obtained senior counsel's opinion, addressing the questions[14] (Questions):
(a)whether the gift made by cl 6(a) lapsed or failed as a consequence of the subdivision process given that, as at the date of the deceased's death, the property described as lot 2 in the will no longer existed;
(b)if the gift lapsed or failed, does the benefit of the subdivision (namely the net sale proceeds and remaining unsold lots) fall to the residuary estate under cl 8(a); and
(c)if so, does that include the family home now known as lot 302.
[13] As distinguished from the solicitors representing the executors in the proceedings.
[14] Affidavit of Maria Siragusa 29 November 2023 par 20.
The Advice was provided to each beneficiary.[15]
[15] Affidavit of Maria Siragusa 29 November 2023 pars 21 ‑ 23.
Turning upon the construction is whether the 20 land titles remaining from subdivision including the New Dwelling, and the net proceeds of the sale of the other 19 lots pass to Carolina and Maria beneficially under cl 6(a) or form part of the residuary to be divided under cl 8(a) between the five beneficiaries including Carolina and Maria and how any applicable expenses may fall.
The Advice given is well known to the parties, but relevant to the Advice given are instructions recited within it. Many facts are stated without express reference to source. That is not any criticism of senior counsel as the source would or should have been apparent to the instructing solicitors or corrected by them if considered to be incorrect.
Those facts, from the affidavits before me, would have been obtained from:
(a)instructions in or with the original brief to counsel;
(b)further instructions provided in writing or orally; or
(c)a document or documents, such as the will, provided with the brief or by subsequent instructions.
As the Advice forms part of the documents filed on affidavit for the Construction Application, the instructions, the Drafts of Advice and documents giving rise to the Advice give rise to the Discovery Application.

Principles of construction of the will

The principles of construction of a will are not central to this application as construction is not for me to decide, but helpful to provide understanding of what will be the subject of hearing subsequently.
The principles set out in the decision of the Court of Appeal in Walsh v Adrian Cory Sloan as executor of the estate of The Late Laurette Dorothy Keddi [2019] WASCA 107[16] are well settled. By way of summary:
(a)The starting point that the object of construing a will is to ascertain the testator's intention as expressed in the will itself, that is to put on the words used the meaning which, having regard to the terms of the will, the testator intended.
(b)In identifying the meaning of the words used, the Court must focus on the intention of the testator objectively ascertained at the time the will was executed. Insofar as surrounding circumstances are relevant to the construction of a will, therefore, the surrounding circumstances will be those at the time the will was made, not at the time of the death of the testator.
(c)Extrinsic evidence may be admitted of factual circumstances surrounding the testator when the will was made, such as the testator's property, family, acquaintances or friends for the purpose of putting the Court in a position to read the will as the testator would have read it, but not of intentions. This principle is now largely reflected in s 28A of the Wills Act 1970 (WA).
(d)The principle of construction does not mean that a will only speaks as at the day of its execution. Indeed, insofar as the property comprised in it is concerned, a will generally speaks and takes effect as at the date of the testator's death, as reflected in s 26 of the Wills Act, unless a contrary intention appears in the will.
(e)It is important to recognise, however, in relation to provisions such as s 26(1)(a) of the Wills Act, that the meaning of the words in the will do not change, although owing to events following the execution of the Will, those words may denote different property. In technical terms, the words have a fixed connotation but their denotation may differ from time to time.
(f)In construing the words used by the testator, the question of construction, then, is: what is the thing (if any) that the testator, by the words used in the will, expressed an intention to give?
(g)In construing the words, the language must be read in the sense that the testator appears to have attached to the expressions used, not in a strictly technical or legalistic sense.
[16] Quinlan CJ, Murphy JA, Sofronoff AJA from [23] ‑ [34].
Section 25 and s 28 of the Wills Act may also be relevant to a testator disposing an interest in property after making a will and charges on property disposed of by will.
The nature and scope of evidence which may be relevant to the proper construction of the will is informative in the context of the Discovery Application.
While an affidavit and its content filed in proceedings do not become evidence until read or ruled to be taken as read, must meet usual requirements of an affidavit and content must be admissible,[17] they must contain statements and content that are relevant to the matters in question.
[17] Order 37.
Disputes as to relevance and admissibility, or as to any privilege, are matters for consideration and determination by the judicial officer hearing the Construction Application in the context of the whole of the circumstances.

Discovery the context of an originating summons

Unless the Court otherwise orders, evidence at the hearing of an originating summons shall be adduced by affidavit.[18]
[18] Order 58 r 21.
By O 26 r 1, any party may give notice in writing to any other party in a cause or matter[19] requiring him to give discovery of all documents which are or have been in his possession, custody or power relating to any matter in question therein.
[19] As defined in s 4 Supreme Court Act 1935 (WA).
As stated by Master Newnes (as he then was) in Boston v Michael John Basioli (as Executor of the Will of Peter Carlo Basioli) & Ors[20] in relation to family provision proceedings commenced by an originating summons:
(a)Order 26 r 1 RSC is wide enough to cover proceedings commenced by originating summons;[21]
(b)Order 1 r 4B requires the Court to apply the rules of Court, and the processes and procedure of the Court, so as best to ensure, among other things, the just determination of litigation and the timely disposal of it at a cost affordable by the parties. The extent to which discovery is available must be tailored to meet those objectives;[22]
(c)it is plain that general discovery in proceedings commenced by originating summons…will rarely be ordered, given the potential difficulties of ascertaining the matters in issue and the time and cost involved in giving general discovery. The matters in issue must be determined by reference to the originating summons and the affidavits filed in the proceedings. That determination will often be more difficult and possibly less precise than in cases where there are pleadings. It is therefore appropriate that discovery should generally be confined to identified issues so that the Court keeps discovery within reasonable bounds;[23] and
(d)where a party seeks discovery of documents relevant to identified issues, the question is not whether there are "special circumstances" which justify an order being made, but rather whether in respect of the proceedings in question it is in the interests of justice that such an order be made.[24]
[20] Boston v Michael John Basioli (as Executor of the Will of Peter Carlo Basioli) & Ors [2004] WASC 205.
[21] At [18].
[22] At [33].
[23] At [34].
[24] At [35].
The usual principles of case flow management stated in O 1 r 4B apply.
It is plain that general discovery in proceedings commenced by originating summons, including proceedings under the Act, will rarely be ordered, given the potential difficulties of ascertaining the matters in issue and the time and cost involved in giving general discovery. The matters in issue must be determined by reference to the originating summons and the affidavits filed in the proceedings. That determination will often be more difficult and possibly less precise than in cases where there are pleadings. It is therefore appropriate that discovery should generally be confined to identified issues so that the Court keeps discovery within reasonable bounds.
It may be appropriate to exercise a power to order limited discovery[25] where it is in the interests that such order be made, and in the Court's discretion, or for the matter to instead proceed by pleadings.
[25] Boston v Basioli [19], [34] ‑ [35].
On an application under O 26 r 7 by a party whose request under O 26 r 1 has not been satisfied, or by a party requested to give discovery, or at any time by the Court of its own motion having regard to O 4 r 1 B, further specific discovery orders may be made.

Discovery Application – applicants' submissions

The Discovery Application incorporating proposed orders pursuant to O 26 r 7(3) was supported by memorandum of conferral, submissions and affidavit[26] filed 17 May 2024.
[26] Affidavit of Charles Mark Dallimore affirmed 17 May 2024.
The essence of the submissions of counsel for the second and third defendants in support of the Discovery Application[27] is that:
[27] Submissions filed 17 May 2024.
(a)by the Construction Application the executors seek directions from the Court in relation to whether the executors are justified to distribute the estate in accordance with the Advice;[28]
[28] Reference to the plaintiffs' submissions filed 11 April 2024 in support of Construction Application.
(b)the executors cannot assert privilege against the beneficiaries as:
(i)there is joint privilege in the Advice[29] obtained by the plaintiffs as executors for guidance as to the proper administration of the estate, and in all the confidential communications, information or documents that relate to the Advice; and
(ii)the plaintiffs have purported to waive privilege in the Advice and some documents comprising the instructions to senior counsel;
(c)some documents the subject matter of the Advice have already been provided to the applicants, and by the application are in affidavits as evidence in support of the Construction Application;
(d)if there are no further documents or instructions the subject of the Advice, it was a simple matter for the executors to file an affidavit deposing to that fact, and they have not done so;
(e)the limited discovery sought is all communications on the subject matter of the Advice;
(f)while the Advice may be the genesis of the Construction Application, the plaintiffs take a position which is not neutral but rather seek to ask the Court as to whether they are justified in acting in a certain way in accordance with the better view of two alternative respectable arguments referred to by senior counsel, which outcome has significant benefit to them in personal capacities as the fourth and fifth defendants;
(g)the issue is not whether the documents will ultimately play a part in resolution of the matter or whether the parties consider they may be relevant, but a matter for the judicial officer determining the Construction Application;
(h)there is forensic unfairness of allowing the Construction Application to proceed until the applicants have been provided with complete disclosure;
(i)it is in the interests of justice that complete disclosure be given otherwise a judicial officer may be misled in determining the proper construction of the will if the documents are not available for consideration.[30]
[29] Schreuder v Murray (No 2) (2009) 41 WAR 169 [10], Pullin J; Hancock v Rinehart (Trust Documents) [2018] NSWSC 1684 [57], Brereton J.
[30] Kenworthy-Groen v Grove & Anor [2021] WASC 364 [12] ‑ [13].

Detailed written submissions were also made with respect to:
(a)procedural legal principles regarding discovery,[31] the court's discretion to order discovery[32] and meaning of production of documents necessary for fairly disposing of the case or saving costs;[33]
(b)the factual background including a chronology almost entirely derived from documents attached to the Affidavit of Charles Mark Dallimore affirmed 17 May 2024;
(c)the requests made for disclosure previously, and extent to which there has been provision or response, and apparent incompleteness of documents provided.
[31] Particularly by reference to Boston v Basioli; O 26 r 1 and O 26 r 7.
[32] Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd & Anor [2001] WASC 177 [15] ‑ [19], Owen J.
[33] Order 26 r 11; Perth Airport Pty Ltd v Qantas Airways Ltd [No 2] [2021] WASC 342 [20], Le Miere J.
With respect to the factual background and chronology supported by affidavit, reference was made to:
(a)probate of the will granted 26 February 2020;
(b)a 28 June 2023 letter from the solicitors for the applicants foreshadowing the formal request to the executors to pass estate accounts;
(c)a 13 July 2023 response from the executors' solicitors indicating they would provide the Advice;
(d)provision on 17 July 2023 of the Advice dated 14 July 2023, to the solicitors for the applicants;
(e)on 17 July 2023, request by the solicitors for the applicants for a copy of the brief to senior counsel to consider the Advice in its full context, followed by disclosures of copies of:
(i)one email to senior counsel dated 17 September 2020 with various attachments;
(ii)four further emails to senior counsel with attachments following further request for disclosure;
(f)a 7 August 2023 request by the solicitors for the applicants, arising from apparent omission, for complete disclosure;
(g)on 15 August 2023 solicitors appointed for the plaintiffs in the proceedings writing to the solicitors for the applicants foreshadowing a response to the request for documents, following which no response to the request was given prior to 26 September 2023;
(h)on 26 September 2023 the plaintiffs' solicitors wrote to the beneficiaries or their solicitors foreshadowing, in effect, these proceedings;
(i)various further requests made for complete disclosure;
(j)responses from the plaintiffs' solicitors in March and April 2024 to the effect that the evidence filed to date represents complete disclosure, the plaintiffs have provided [the applicants] with everything, and essentially, it is for the plaintiffs to determine whether any omitted documents will bear on the outcome of the [Construction Application].

Discovery Application – respondents' submissions

The Discovery Application was strongly opposed by the plaintiffs as respondents to the application. Submissions filed 2 June 2024 were to the effect that the Discovery Application should be dismissed as:
(a)the applicants have not demonstrated how or why the Court could be misled without the proposed discovery orders;
(b)there are no 'special circumstances,' or interests of justice grounds justifying the proposed discovery orders;
(c)the proposed discovery orders are inappropriately wide, have no limitation on dates and are in effect, an unjustified request for a 'file dump';
(d)the leading authorities do not support making the proposed discovery orders in the circumstances of this case; and
(e)it does not promote the objects of O 1 r 4B(1) and would cause further unjustified legal costs and substantial delay.
The respondents' submissions focussed on what the proceedings are about; the Advice; the plaintiffs' role; the purpose of the Advice; what the applicants are asking for by the Discovery Application and why; legal principles; relevance of legal professional privilege; and costs. The submissions are briefly summarised below.
With respect to the nature of the proceedings, the respondents submit that:
(a)this is one of four important factors governing the exercise of discretion to order discovery;[34]
(b)the proceedings are a conventional application by executors for directions as to the proper construction of cl 6(a) of the will, made clear from the originating summons, submissions they filed in support of the Construction Application and correspondence;[35]
(c)there is no real doubt about what the plaintiffs are seeking, there is nothing complex or unusual about the proceedings, and the issues for determination are clear and narrow;
(d)there has been extensive correspondence exchanged between the parties and their solicitors prior to commencement of the proceedings[36] including the letter by the solicitors for the executors dated 13 July 2023 regarding advice of senior counsel on a matter concerning interpretation which may have a significant bearing on distribution and need for application to the Court for directions if agreement cannot be reached;
(e)despite the Advice and documents being provided as to the brief and an extensive number of further documents, the applicants have not made the respondents aware as to whether they agreed or disagreed with the Advice, have not said that there is anything wrong, incorrect or doubtful about the Advice or the facts and assumptions expressed in it, and not provided a substantive response to it;
(f)the position taken by the respondents has been a seemingly endless cycle of requests, compliance and further requests;
(g)the applicants' solicitors have stated that they are not able properly to consider their position without complete disclosure in respect of the legal advice upon which the plaintiffs rely, and in such circumstances forensic unfairness[37] or forensic disadvantage have been repeatedly raised to justify their position, without explanation as to what is alluded to or why they cannot participate in the proceedings until discovery orders are made;
(h)the plaintiffs attempted to avoid the proceedings by inviting the beneficiaries to consider the Advice and advise whether they agreed or disagreed with it. As no substantive response was received the only viable option was to seek directions.
[34] Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd, Owen J.
[35] Affidavit of Charles Mark Dallimore affirmed 17 May 2024 attachment CMD 11 at page 96.
[36] Evidenced by the affidavit of Charles Mark Dallimore.
[37] Affidavit of Charles Mark Dallimore, page 97, October 2023 communication.
With respect to the Advice, counsel for the respondents submits:
(a)the plaintiffs did not include the Advice in the initial supporting affidavit, and it is not strictly essential to be in evidence, it is simply an opinion. It may assist the Court, but the Court is not bound to adopt it;
(b)the plaintiffs' initial affidavit is likely to be sufficient for the Construction Application. Proceedings for directions of this kind are frequently determined without a legal opinion. It was the applicants' solicitors who insisted it be put into evidence;
(c)senior counsel was eminently qualified to provide the opinion, with detailed assessment of the relevant questions to be addressed, facts and assumptions relied on and an application of the relevant legal principles.
With respect to the plaintiffs' role, the implication that the plaintiffs are not neutral is rejected.
The respondents submit that it is not unusual for advice of senior counsel to be relied on in applications of this kind.[38]
[38] Versteeg v Versteeg [2008] WASC 142, Simmonds J, the Court arriving at the same conclusion but not merely adopting the opinion of senior counsel.
With respect to the Discovery Application, the respondents submit that they do not really know what the applicants want or why, or the value of any of them to narrow issues of construction for which the plaintiff respondents have put before the Court relevant material. It is submitted the applicants have refused to put on any evidence beyond that in support of the Discovery Application, citing vague arguments about insufficient documents. It is a mystery as to why the applicants have not provided response to the Advice or the Siragusa affidavit filed by the plaintiffs in support of the Construction Application.
With respect to the legal issues regarding discovery:
(a)by reference to the authorities cited by the applicants, counsel for the respondents submitted that it is common ground that discovery orders will not ordinarily be made in proceedings commenced by originating summons, and on closer examination, the Boston v Basioli[39] case was a proper basis upon which the Discovery Application should be dismissed. In that case Master Newnes, as he then was, dismissed an application for discovery finding that there was no explanation as to why such extensive documentation[40] would be necessary, particularly given absence of evidence that the financial statements were inaccurate or unreliable;
(b)the applicants seek essentially discovery of every document, irrespective of relevance, touching upon or concerning the Advice, for which they do not know why.
[39] Referring to Re Borthwick (1948) 1 Ch 645 to similar effect.
[40] Including journal entries, general ledger, cheque books and other primary accounting records for a company in which a deceased held shares ‑ in the context of proceedings under the Inheritance (Family and Dependants Provision) Act 1972 (WA).
Counsel for the respondents further submits that:
(a)it is not apparent how the documents will assist the Court or ensure it is not misled;
(b)no evidence has been advanced to doubt the legitimacy of the Advice or the assumptions underlying it, but having insisted upon the Advice being in evidence the applicants now seek to create an issue of it, causing delay and further cost without justification;
(c)the Discovery Application has nothing to do with legal professional privilege.

Discovery Application – applicants' further submissions

The applicants filed reply submissions on 9 June 2024. In those submissions they:
(a)rejected the contentions that the Advice was filed on affidavit at the insistence of the applicants, noting further that having done so, the plaintiffs have relied upon it in support of the Construction Application and in the submissions in support, and expressly sought to administer the estate in accordance with it;
(b)stated that the Discovery Application would not be necessary if the Advice was not relied upon in the Construction Application;
(c)rejected the suggestion that it is common ground that discovery orders ordinarily will not be made in proceedings commenced by originating summons, rather it is orders for general discovery that will rarely be made. Here the applicants seek specific discovery orders, which are narrow;
(d)submitted that special circumstances are not required, despite the respondents' submissions in reliance on Re Borthwick and Boston v Basioli. The correct test is whether it is in the interests of justice, and the circumstances of Boston v Basioli can be distinguished.
(d)state that they seek provision of the documents they are entitled to to enable them and the Court to consider the Advice in its complete context. Complete disclosure of the balance of communications is necessary for that purpose, particularly where the Court and beneficiaries are being asked to rely upon or have regard to the Advice;
(e)explain that forensic unfairness is commonly used with respect to incomplete disclosure in relation to waiver of legal professional privilege. While waiver is not strictly relevant here, there being joint privilege between executors and beneficiaries, by analogy it is the partial disclosure which gives rise to a risk of being misled or forensic unfairness,[41] the rationale being expressed by Gibbs CJ in Attorney-General (NT) v Maurice:[42]
... that the party who possesses the document is clearly not the person who can decide whether a partial disclosure is misleading or not, nor can the judge decide without hearing argument, nor can he hear argument unless the document is disclosed as a whole to the other side...
... where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood.
and in Thomas v State of New South Wales [2006] NSWSC 380, in which the court made a comparison to reliance on an expert report. Once an expert opinion is relied upon, it would be unfair for a party to rely on the opinion without disclosure of the brief, instructions or documents underpinning it, McClellan J stating:[43]
…By including the advice in the affidavit, an act of express waiver was undertaken. It is plain that the plaintiff sought to have the advantage of the advice and use it in these proceedings. That step was taken consciously.
[41] DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384, Allsop J [58].
[42] Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 [8] ‑ [9].
[43] [16] ‑ [17]; cited in AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 [169].
Being asked to rely upon the Advice and whether they agree with the Advice, the applicants submit, both the beneficiaries and ultimately the Court require complete disclosure for that to be fairly done.
The applicants state that the respondents' position remains inconsistent in that:
(a)on one hand it is alleged the proposed orders are inappropriately wide, unjustified, and a file dump;
(b)on the other, correspondence refers to having provided everything or extensive documents.
Specific discovery, the applicants submit:
(a)should involve a simple exercise for the plaintiffs to file an affidavit to list the documents already provided, and if there are further documents, any further documents not currently disclosed; and
(b)provision of what should be the remaining documents to complete what the plaintiffs have provided by way of almost complete disclosure.
Refusal by the plaintiffs to complete disclosure gives rise to the applicants being concerned that documents not provided relate to a critical issue for the determination of the Construction Application.
From what the applicants do know, the known undisclosed documents appear to relate to a critical issue of the testator's understanding or intention with respect to the Yangebup Title:
(a)reflected in a recital of instructions by senior counsel within the Advice that:
There was no indication, so far as the executors were aware, that subdivision of any part of the land was in Mrs Galati's contemplation at the time of making the will.
(b)however, in instructions to the opposite effect in initial instructions given to senior counsel on 17 September 2020:
At the time the Will was drafted and signed (May 2015) the land … [described]
In May 2015 the possibility, indeed the likelihood, of this Land being subdivided in the future was very real. The Terranovis (Project Manager) engagement letter is dated 26 May 2016.
(c)a document of which the applicants know, not disclosed, is a draft advice of senior counsel referred to in an email of 12 January 2021 by the solicitor on behalf of the plaintiffs, and referring to the solicitor seeking to clarify what Mrs Galati 'knew' about the potential subdivision as at the date she signed her Will;
(d)the final Advice was initially dated 10 May 2023 in signed form, but not disclosed in that form. Following further instructions provided about the deceased not considering subdivision when she signed her will provided to senior counsel on 7 July 2023, which is significant to the issue of ademption, the Advice was updated at the express request of the plaintiffs' solicitors, the final Advice filed upon affidavit being signed and dated 14 July 2023;
(e)the incomplete disclosure of Drafts of Advice and documents does not make clear how the position from initial to final instructions changed or why the instructions continued to be updated after two years, why the estate administration was incomplete after more than three years after the grant of probate and need to request the passing of accounts; and
(f)complete disclosure of the documents is in the circumstances critical and in the interests of justice.

Discovery Application – respondents' further submissions

The respondents filed submissions on 10 June 2024 in response to the applicants' reply submissions. Those submissions:
(a)seek to ensure there is no misunderstanding about how and why the Advice came to be put into an affidavit to put it into evidence;
(b)submit that it is unclear what the applicants mean by their reference to the plaintiffs' reliance on the Advice, and the Construction Application could be determined without the Advice in evidence;
(c)the Advice is a legal opinion, when read, which does little more than:
(i)set out the background and instructions relied on;
(ii)explain the difficulties counsel perceives with cl 6(a);
(iii)identify an area of unsettled law in this jurisdiction regarding ademption;
(iv)identify the existence of two potential arguments as to the proper construction of cl 6(a); and
(v)explain counsel's preferred argument but with, critically, the added caveat that there are two competing arguments such that directions should be sought by the executors under s 45 of the Administration Act 1903(WA).
(d)the Court is being asked to give advice on a complex question. The Advice provides at least two possible answers with detailed reasoning and analysis;
(e)while the Advice could be seen as favourable to certain beneficiaries in relation to each question, the Court is not bound by the opinion, so it is difficult to understand the applicants' objection;
(f)the applicants' solicitors' position regarding the inability to file evidence and submissions until the plaintiffs had filed submissions for the Construction Application is indicative of a fundamental misunderstanding of the nature of the proceedings;
(g)the applicants appear to make a significant concession, by suggesting their Discovery Application may be unnecessary, to the effect that they would consent to the application being dismissed if the Advice were not relied upon. If so, they would agree to certain orders including as to costs;
(h)there is little practical difference between the tests applied by Master Newnes in Boston v Basioli and, regardless of test, this application should fail;
(i)this is a construction summons, there is no need for discovery, there are no substantial issues of disputed facts or questions of credibility;
(j)having all potentially relevant documents available for consideration by the parties and judicial officer is not supported by authority where specific discovery has succeeded on those grounds, and it would likely be contrary to O 1 r 4B to order discovery of 'potentially relevant documents', and it is hard to see how the documents could arguably be relevant;
(k)it is difficult to see how providing numerous documents to the Court will assist, and it is bad practice. It is difficult to see how it could have a material impact on the outcome of the proceedings for construction;
(l)the issue of the instructions to senior counsel has been addressed;
(m)the application should be dismissed.

Discovery Application – submissions regarding recent decision

At the hearing of the Discovery Application, I invited the parties to consider the recent decision of Kuenen v Robert Leslie Hortin and Adrian Mark Bickford As Executor Of The Estate Of Late Leslie Mervyn Hortin [2024] WASC 152, a case involving construction of a will and ademption, both being issues for the Construction Application.
Supplementary submissions were filed by the applicants on 17 June 2024. It was submitted:
(a)it is not clear at that stage which particular factual matters will be relevant to the determination of the construction and ademption issues, but evidence of the testator's intention at the date of the will could be relevant;
(b)the submissions expanded upon what may or may not be admissible for those purposes, including that the broader factual circumstances can be admissible for ascertaining objective intention;
(c)while the facts of the case are distinguishable, relating to partnership property in that case, construction was found to pay proper regard to context;
(d)relevance and admissibility are matters for final hearing, not this application, and determination is not possible in abstract within this application without reference to the documents in question;
(e)where ademption is in issue, disposition of the matter is not necessarily limited only to the construction of the will.
A letter from the respondents’ counsel regarding the Kuenen decision dated 11 June 2024 noted that several of the major topics are also likely to arise in these proceedings, including the correct approach and doctrine of ademption, and as such is a useful decision.

Consideration

The disclosure of documents relating to the Advice was an issue raised by the applicants prior to commencement of the Construction Application, on the basis that the applicants were not able properly to consider their position with respect to the Advice without complete disclosure of the legal advice upon which the executors relied, and it being premature to commence the proceedings due to forensic unfairness arising.[44]
[44] Affidavit of Maria Siragusa 29 November 2023 attachments 'MS06', pages 31and 32 emails from the solicitors for the applicants to the solicitors for the respondents dated 16 October 2023 and 13 October 2023.
Prematurity, need for further disclosure and forensic disadvantage have been denied by the plaintiffs’ solicitors for several months before the Discovery Application was filed. Significant effort has been expended and significant expense has been incurred in this contested application alone, involving essentially three sets of submissions each and numerous exchanges of correspondence, the parties having been unable to resolve the issues themselves.
An argument central to the position taken by the executors' solicitors is that the Advice is before the Court at the insistence of the applicants, but that the Advice speaks for itself, although is just an opinion not binding upon the Court, and it sets out the factual background, legal reasoning and underlying assumptions clearly and in detail. How it is before the Court is not the issue, the fact is that it is filed on affidavit and the subject of submissions going to the Construction Application.
It is the facts and assumptions, and the instructions of the executors' solicitors as to facts and assumptions upon which senior counsel relied in forming his opinion, that may be of importance to the conclusions reached in the Advice, to the defendants in consideration of their position and the extent of their need for involvement in the Construction Application, and to the Court in determination of the proper construction of the will.
The executors take the position that the documents in question have been provided to the applicants. It appears from the correspondence on affidavit that there have been a number of requests over time, complied with to some extent, which led the applicants' solicitors to identifying or finding reference to other documents not provided. Further request included communications disclosing a change of instructions given to senior counsel and change to the Advice specifically requested.
While the construction of cl 6(a) is a matter for the Court upon hearing the Construction Application, documents or information potentially relevant and admissible for that purpose and as filed by the executors in support of that application[45] to date are limited. The executors seek directions considering the circumstances they have provided on affidavit[46] which now includes the Advice.
[45] As opposed to the Discovery Application.
[46] Affidavit of Maria Siragusa 29 November 2023 par 28.
As there is reliance upon the Advice and assumptions within it for the Construction Application, which itself is based upon instructions provided to senior counsel by solicitors for the executors, there is a risk that the Court could be misled if the basis for those instructions and assumptions is not before the Court. There is a risk of forensic unfairness if the documents and instructions provided to senior counsel and the Drafts of Advice based upon the instructions provided to the executors' solicitors are not discovered fully and produced, although that is a narrow class of documents. If, of course, any basis for privilege were claimed, the documents could nonetheless be identified and discovered and the basis of any such claim identified.
It may be that upon specific discovery being provided the parties may be able to agree certain facts, and whether there are particular documents which should be placed into evidence, to avoid unnecessary further dispute in advancing the principles of O 1 r 4B, in particular the just and efficient determination of the matter.
The interests of justice justify the making of orders for specific discovery by affidavit of a limited class of documents and production of such documents clearly confined in nature relating to the Advice. It is not intended that would result in an inappropriately wide file dump.
While the respondents contend that there is no real doubt about what the plaintiffs are seeking, that there is nothing complex or unusual about the proceedings, and that the issues for determination are clear and narrow, they also acknowledge that the Court is being asked to give advice on a complex question with at least the two possible answers by reference to the Advice.
Extrinsic evidence may ultimately be admissible and significant to the proper construction. While the executors have filed their own affidavits and submissions, the defendants are yet to do so, and at present the evidence in question is limited. It is not for the executors in this case to decide what is relevant to the exclusion of the beneficiaries and the Court.
Having considered numerous communications on these issues, I have formed the view that the endless cycle of requests and responses which have plagued the completion of administration of the estate over documents giving rise to the Advice must end, however the requests have arisen legitimately. Months of ongoing correspondence before and since commencement of the proceedings, the Discovery Application and possibly the need for the Construction Application, could have been avoided by full provision of the documents requested giving rise to the Advice and if necessary an affidavit confirming so.
The assessment of the questions, facts and assumptions by senior counsel and senior counsel’s knowledge and experience in the area of the Advice are not the concern.
The concern as to the facts and assumptions, and lack of full disclosure, particularly arises in a context that those instructions were provided initially in 2020 on the basis that the likelihood of subdivision of the Yangebup Title in May 2015 was very real, then the Advice was finalised and signed 10 May 2023 but not provided to the defendants, then changed at the request of the plaintiffs’ solicitors on 7 July 2023 upon provision of further instructions. The final version of 14 July 2023, provided to the defendants, was filed in these proceedings.
At the request of the executors’ solicitors, senior counsel changed the advice to refer to there being no indication, so far as the executors were aware, that subdivision of any part of the land was in the deceased contemplation at the time of making the will.
The reference within original instructions to senior counsel of the possibility, indeed the likelihood, of Yangebup Title being subdivided in the future being very real at the time of making the will and to a Terranovis engagement letter dated 26 May 2016 is to a document apparently signed by Carmela Galati as executor of the estate of Francesco Galati to appoint Terranovis to project manage subdivision of the Yangebup Title with fees payable from sales, and for which there are related documents of 21 July 2016 apparently signed by the deceased and all defendants based upon the subdivision.
A subsequent cost sharing deed between the Carmela Galati as owner of Lot 2 and the owners of the adjoining Lot 1 property being subdivided with it, which is apparently signed for Carmela by Maria on 17 April 2018 by power of attorney, and to an acquisition of a slice of land on the eastern portion of Lot 1 by Carmela Galati for value to achieve more favourable subdivision design for subdivision of Lot 2 are also referred to in the Advice.
While attached to the affidavit of Charles Mark Dallimore affirmed 17 May 2024 in support of the Discovery Application, none of the Terranovis documents, the cost sharing deed or documents relating to acquisition of the slice of land were attached to the affidavits or referred to in submissions filed by the plaintiffs in support of the Construction Application.
While it is also not for me to determine the evidence which will or may be required for the Construction Application, or relevance, admissibility or any significance to the proper construction of any evidence, and the defendants may have many documents from which further affidavits will be filed, the Terranovis documents, the cost sharing deed and documents relating to acquisition of the slice of land relate to the subdivision and what was the product of subdivision from the original Lot 2 inform the understanding of the Advice. Further, the Terranovis documents regarding subdivision are more proximate in time to the date of the 26 May 2015 will than the 2017 and 2018 plans of subdivision and April 2018 subdivision documents attached to affidavits and referred to in submissions in support of construction.
From the information before me I do not accept the respondents’ submission that the Siragusa affidavit is likely to be sufficient to enable the Court to give appropriate directions as to the proper construction, although I accept that such applications can be and are often determined without a legal opinion in evidence.
Further, even with the additional Playford affidavit attaching the Advice, I do not accept that that will resolve the issue of sufficiency of evidence for the Court to give appropriate directions in a fully informed manner. The totality of affidavit content is brief and the Advice is dependent upon instructions provided by solicitors who in turn took instructions from the executors, or relied upon documents, or both for that purpose.
The completeness of information and reliability of information cannot be fully assessed. What is clear is that all of the documents which relate to the Advice and which may bear upon the issues do not appear to have been provided to the defendants, and do not form part of the documents filed for the Court to determine the Construction Application.
More documents and submissions have been filed by the plaintiffs in strenuous opposition to the Discovery Application than have been filed in support of the Construction Application despite the insisted neutrality of the executors’ role in applying to determine the proper construction of the will. Significant financial benefits flow dependent upon the proper construction and non-disclosure gives rise to suspicion.
The plaintiff executors seek directions from the Court as to whether they are justified to distribute in accordance with the Advice.
Fundamental to the Advice are the instructions and changes of instructions, which may be particularly relevant to the circumstances known to and in contemplation of the deceased when she made her will upon which the Advice is based.
How the gifts in cl 6(a) are impacted by subdivision and consideration of principles of ademption fall to be considered in the context of senior counsel preferring one construction over another, although not without merit to competing interpretation, even though it is an opinion not binding on the Court. The instructions may be significant.

Disposition

Having set out in detail and considered the submissions of counsel, I am satisfied that:
(a)the requirements of O 26 r 7(1)(a) have been met, the requests of the applicants for particular documents on an informal basis not having been satisfied;
(b)given the extensive period of argument between the parties for well over a year as to what documents should be disclosed by the executors to the beneficiaries in relation to the Advice, including the need for the Discovery Application, very extensive submissions and strenuous positions taken, provision of specific discovery is appropriate; and
(c)orders require, pursuant O 26 r 7(4), specific discovery on affidavit.
I am also satisfied that specific discovery:
(a)will facilitate the objects of case flow management under O 1 r 4B rather than be contrary to those objects;
(b)will remove the issue of forensic unfairness arising from incomplete disclosure so that the parties may make submissions in, and the judicial officer may determine, the Construction Application without risk of being misled or without complete information;
(c)will enable all appropriate documents to be placed into evidence before the Court for the Construction Application, subject to issues for hearing as to relevance and admissibility facilitating the just determination of the proceedings; and
(d)is in the interests of justice.
If resolved amicably at the start, that may well have led to parties being able to agree a resolution upon consideration of the Advice and documents without the need for the Construction Application.
While substantial informal discovery and disclosure of the documents has been given I determined that orders be made in terms of the applicants' minute of proposed orders but in more limited terms, and subject to the time limitation proposed in supplementary submissions to 14 July 2023, the date of the final Advice, but not with respect to proposed order 1.3 between the plaintiffs and their solicitors. It is the instructions provided to senior counsel and his communications about issues, and the drafts or incomplete versions, that inform the Advice given.
The orders made 6 December 2024 are more limited than within the proposed orders within the Discovery Application. I consider the scope to be reasonable and sufficient. I am mindful that a staged approach may be required and there may be request for further specific discovery once documents discovered in compliance with these orders have been provided.
Orders have been made accordingly. I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DK
Registrars Associate
12 DECEMBER 2024