Hastings v Hastings
[2020] WASC 209
•18 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: HASTINGS -v- HASTINGS [2020] WASC 209
CORAM: REGISTRAR FATHARLY
HEARD: 11 FEBRUARY 2020
DELIVERED : 18 JUNE 2020
FILE NO/S: CIV 3141 of 2019
BETWEEN: SHANE ROBERT HASTINGS
Plaintiff
AND
MARK WARREN HASTINGS as administrator of THE ESTATE OF LEE ROBERT HASTINGS
First Defendant
MARK WARREN HASTINGS
Second Defendant
MIKE ROBERT HASTINGS
Third Defendant
WAYNE ROBERT HASTINGS
Fourth Defendant
THE PUBLIC TRUSTEE as executor of the estate of CLANCY JO HASTINGS
Fifth Defendant
GAIL ANN HASTINGS
Sixth Defendant
KATHLEEN MARY HASTINGS
Seventh Defendant
Catchwords:
Practice and procedure – Letters of administration – Probate action to revoke grant – Citations – Non–compliance with O 73 Rules of the Supreme Court – Discretion to regularise irregularity provided no injustice caused
Legislation:
Administration Act 1903 (WA), s 14, s 25, s 29, s 35, s 45
Public Trustee Act 1941 (WA), s 10
Rules of the Supreme Court 1971 (WA), O 2, O 20, O 58, O 73
Result:
Orders made regularising proceedings
Category: B
Representation:
Counsel:
| Plaintiff | : | A Dique |
| First Defendant | : | In person |
| Second Defendant | : | In person |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
| Fifth Defendant | : | M Woodford |
| Sixth Defendant | : | In person |
| Seventh Defendant | : | In person |
Solicitors:
| Plaintiff | : | Hammond Legal |
| First Defendant | : | In person |
| Second Defendant | : | In person |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
| Fifth Defendant | : | Public Trustee |
| Sixth Defendant | : | In person |
| Seventh Defendant | : | In person |
Case(s) referred to in decision(s):
ABB Service Pty Ltd v Hetherington [2001] WASCA 235
Boyle v Sacker (1888) 39 Ch D 249
Carr v Larussa Pastoral Holdings Pty Ltd [2015] WASC 300
Corruption and Crime Commission of Western Australia v McCusker AO QC [2009] WASC 44
Doyle v Commonwealth [1985] HCA 46
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46
Glendinning v Cuzens [2009] WASCA 21
Martin-Smith v Woodhead [1989] WASC 166
Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257
R v S [2009] WASCA 11
Re Banning; Ex Parte Banning [2018] WASC 313
Re Langton (dec'd); Langton v Lloyd's Bank [1964] 1 All ER 749
Smith v Partridge [2018] WASC 128
The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358
Union Bank of Australia v Harrison, Jones and Devlin Ltd [1910] HCA 44
Wytcherley v Andrews (1871) LR 2 P & D 327
REGISTRAR FATHARLY:
These are my reasons for determination of the question of whether the proceedings, not having been properly commenced in accordance with O 73 of the Rules of the Supreme Court1971 (WA) (RSC), should be discontinued and new proceedings commenced by a writ of summons and statement of claim, or alternatively whether the current proceedings can continue with appropriate remedial orders.
Background
Lee Robert Hastings (the Deceased) died intestate on 18 November 2014.
Letters of administration of the Deceased's intestate estate were granted to the first defendant on 3 November 2015, he being a person entitled in distribution of the estate pursuant to s 14(1) of the Administration Act 1903 (WA) upon the Deceased's death.
The estate remains partially unadministered.
By originating summons filed 17 December 2019 the plaintiff commenced proceedings seeking the following orders:
(a)The grant of administration of the Deceased's estate made by this Court on 3 November 2015 to the first defendant be revoked.
(b)This Court appoint the Public Trustee to be the administrator of the estate of the Deceased.
(c)The first defendant shall within seven days deliver to the registry of this Court the original grant of administration for cancellation.
(d)The first defendant do pay the plaintiff's costs of this application on an indemnity basis or, in the alternative, the plaintiff's costs of this application be paid from the estate of the Deceased on an indemnity basis.
For ease of reference to each of the members of the family, each having the same surname, and without intending any disrespect to them, I refer to them in these reasons by their first name.
The originating summons was supported by an affidavit of the plaintiff Shane Robert Hastings sworn 12 December 2019 and filed 17 December 2019 (Shane's Affidavit) comprised of 74 paragraphs plus 31 attachments, a total of 169 pages.
In his affidavit Shane states that the Deceased was not married and had no children, and identified those entitled in distribution as at the date of the Deceased's death. Those beneficiaries and their role in the proceedings are as follows:
Beneficiary Relationship to Deceased Party in proceedings Kathleen Mary Hastings (Kathleen) Mother Seventh defendant Robert Warren Hastings, died 3 May 2015 (Robert) Father Not a party Mark Warren Hastings (Mark) Brother First defendant and second defendant Mike Robert Hastings (Mike) Brother Third defendant Clancy Jo Hastings, died 19 May 2018 (Clancy Jo) Sister Fifth defendant by her executor the Public Trustee Wayne Robert Hastings (Wayne) Brother Fourth defendant Gail Ann Hastings (Gail) Sister Sixth defendant Shane Robert Hastings (Shane) Brother Plaintiff
Each of the plaintiff and second to seventh defendants have entitlements in distribution of the Deceased's intestate estate pursuant to s 14(1) of the Administration Act 1903 (WA) upon his death. Robert, by his executor, also has entitlements from the Deceased's estate but his executor is not joined as a party. Some explanation is provided for that in Shane's Affidavit.
At the first case management conference in this matter the issue was raised by counsel for the Public Trustee as to whether the proceedings were properly commenced as they had not been commenced in compliance with O 73 of the RSC.
The question, the subject of these reasons, is fundamental to the court process and necessary to determine at an early stage.
The parties who had appeared or communicated with the court were provided the opportunity to file submissions for the question to be determined on the papers.
These are my reasons for decision, formal orders for which will be made separately.
O 73 of the RSC
Order 73 of the RSC applies to probate causes and matters, and the rules of court generally apply to those causes and matters subject to the provisions of the Order.[1]
[1] O 73 r 1(1) of the RSC.
An application for the revocation of letters of administration is a 'probate action'.[2] There are other actions specified which are also probate actions.
[2] O 73 r 1(2) of the RSC.
Shane's application is a probate action.
A probate action must be begun by writ.[3]
[3] O 73 r 2(1) of the RSC.
A writ beginning an action for the revocation of the grant of probate of the will, or letters of administration of the estate, of a deceased person shall not be issued unless a citation under r 8 has been issued or the probate or letters of administration, as the case may be, has or have been filed.[4]
[4] O 73 r 2(2) of the RSC.
In an action for the revocation of the grant of probate of the will, or letters of administration of the estate, of a deceased person, a citation may, on the application of the plaintiff, be issued against the person to whom the grant of probate or letters of administration was made requiring them to bring into and leave at the central office the probate or letters of administration, as the case may be.[5]
[5] O 73 r 8 of the RSC.
By their terms, the requirements of O 73 r 2(1) and (2) of the RSC are mandatory for probate actions. There shall not be a probate action begun for the revocation of the grant, as in this case, unless a citation under r 8 has been issued or the grant has been filed, and such action must be begun by writ.
Without setting out the longstanding history and procedural differences between proceedings commenced by originating summons on the one hand and by writ on the other, it is sufficient to broadly state that:
(a)an originating summons commences proceedings which may be determined in chambers. An originating summons is filed with an affidavit or affidavits of the evidence relied upon by the plaintiff, and responsive affidavits may be filed by the defendants. Usually an originating summons is appropriate in circumstances whereby there are no significant factual disputes and the RSC do not require the proceedings to be commenced by other originating process. An originating summons is inappropriate where there are likely to be contested disputes of fact.[6] There is usually no discovery of documents;
(b)a writ commences proceedings determined in open court. A writ has indorsed upon it either a claim in brief terms or a statement of claim. If there is an indorsement of the claim, a statement of claim must be filed.[7] A statement of claim must state specifically the relief or remedy which the plaintiff claims.[8] Once those allegations are properly pleaded, a defendant who enters an appearance in, and intends to defend an action, must serve a defence.[9] The defence may consist of admissions, denials or non‑admission of each allegation, or not plead to them if the allegation is not as against them. By setting out the allegations in the statement of claim in a clear and concise manner, the defendants should know the case alleged against one or more of them and respond appropriately in their defence. Where a writ is filed, while specifying the relief or remedy claimed and subject to providing particulars of claims, the pleadings may contain only a summary of the material facts upon which the party pleading it relies but not the evidence by which those facts are to be proved.[10]
[6] Martin-Smith v Woodhead [1989] WASC 166.
[7] O 20 r 1 of the RSC.
[8] O 20 r 2 of the RSC.
[9] O 20 r 4 of the RSC.
[10] O 20 r 8 of the RSC.
There is nothing stated within the originating summons as a basis upon which the orders sought are claimed to be appropriate, such as a failure to administer the estate or a breach of duties. Shane's application by originating summons relies upon his affidavit to make such allegations and attach documents which he believes to be relevant to the court's determination. The nature and scope of the allegations have to be gathered from reading the affidavit. There is no clear statement of allegations.
Where proceedings have been commenced by originating summons which will or may involve disputes as to fact, it is possible for the court to make orders to secure the just, expeditious and economical disposal of the originating summons under O 58 r 27 of the RSC, which could involve filing of pleadings or documents defining the factual issues, or for the matter to proceed on oral evidence, or partly on oral evidence and partly on affidavit, with or without cross‑examination.
Where proceedings commenced by originating summons should have been commenced by writ, the issue arises as to whether the failure to commence proceedings in the proper form is a basis for staying or setting aside the proceedings.
In Corruption and Crime Commission of Western Australia v McCusker AO QC[11] Martin CJ stated:
[11] Corruption and Crime Commission of Western Australia v McCusker AO QC [2009] WASC 44 [10] ‑ [14].
10The distinction between the form of originating process utilised is important for a number of reasons. It is no mere technicality. Those reasons include the extent of public access to the proceedings. For example, where proceedings are commenced by writ, the writ is a public document and is available for inspection by any member of the public. Further, when proceedings are commenced by writ they are, subject to any order of the court, invariably heard in open court, whereas proceedings commenced by originating summons can be heard in chambers.
11There is every reason why these proceedings should be conducted in the full gaze of the public. They should be completely transparent. The commission does not submit otherwise. The question of whether the normal processes of the court which follow the issue of a writ, such as pleadings and the like, should be followed in this case are subsidiary questions of case management which can be addressed when the matter proceeds.
12Notwithstanding my view as to the defect in the manner of commencing these proceedings, that is no basis for staying or setting aside these proceedings. If there were any doubt about that, O 2 r 1(3) expressly provides that:
The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the grounds that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed.
13So the Rules specifically require the court to adopt a remedial approach rather than a technical approach to issues such as this one. It seems to me that the defect to which I have referred is best overcome by me issuing a direction to the effect that the originating summons be treated in all respects as if it were a writ generally endorsed and that it be made available for public inspection as if it were a writ.
14I will further direct that the proceedings are to continue in all respects as if commenced by a writ, save that I will stay any of the Rules that would require a pleading to be served within any particular time. This is because it seems to me the question of whether this is a case in which pleadings are necessary is best addressed at some later point and in particular after the issue with respect to justiciability or jurisdiction has been resolved.
The last comments of the learned Chief Justice as to justiciability and jurisdiction are not relevant to the issue arising in this matter and do not prevent a similar approach being taken in the current proceedings, although the proceedings before the learned Chief Justice were not a probate action.
The plaintiff's submissions
Shane properly concedes that the requirements of O 73 r 2 of the RSC have not been complied with in that the action was not commenced by writ and a citation had not been issued under O 73 r 8 for the grant of letters of administration to Mark to be brought in and left with the court.
If a citation were to be issued to comply with O 73 r 8, the plaintiff would have to include a draft citation with their application and that citation must not be issued unless supported by affidavit of the applicant, or in special circumstances, by their solicitor, and settled by a registrar.[12]
[12] O 73 r 8A, O 73 r 9 of the RSC.
The requirement for Mark to be cited to bring in the grant is not merely a technicality or formality. Plaintiffs commencing probate actions should not expect that they may commence proceedings by originating motion and affidavit disregarding O 73 of the RSC and that the court will simply make orders curing the deficiencies.
Shane submits that it is nonetheless open to the court to hear and determine the application on the originating summons, and rely upon O 2 r 1(1) and (3) of the RSC which provide:
1.Non‑compliance with rules
(1)Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.
…
(3)The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed.
Shane's submissions do not refer to the other relevant part of O 2, being r 1(2), which states:
(2)Subject to subrule (3) the Court may, on the ground that there has been such as failure as is mentioned in subrule (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.
Shane relies upon the fact that the Court of Appeal have noted that O 2 r 1 has done away with the old distinction between nullities and irregularities and allows the court to rectify any omission or mistake in practice or procedure so long as it can do so without injustice,[13] and in the exercise of its discretion the court may, by appropriately formulated orders, regularise an irregularity.[14]
[13] Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257 [52].
[14] R v S [2009] WASCA 11 [28].
Despite the comments of the Court of Appeal in R v S[15] that in the exercise of discretion the court may regularise an irregularity, it found in that case that the failure to personally serve the notice of motion by way of appeal, being express statutory requirements and irregularities of a serious kind, might, in the exercise of discretion, be regularised but in the circumstances the discretion conferred by O 2 r 1 should be exercised by making an order wholly setting aside the proceedings.
[15] R v S [40].
Shane further relies upon the decision of Re Banning; Ex Parte Banning[16] in which the applicant commenced proceedings to revoke a grant of probate by way of motion not a writ, contrary to O 73 r 2(1) of the RSC. He submits that Vaughan J considered the application of O 73 r 2(1) and determined, notwithstanding that the application was not commenced by way of writ, that the court could rely on O 2 r 1(1) and O 2 r 1(3) of the RSC to hear the matter.[17] He refers to Vaughan J having noted that in The Estate of Erminia Agnes Rogers v Rogers[18] EM Heenan J was prepared to revoke a grant of probate on the court's own motion once the relevant facts had been brought to his attention and established.
[16] Re Banning; Ex Parte Banning [2018] WASC 313.
[17] Re Banning; Ex Parte Banning [23].
[18] The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358 [29].
Re Banning; Ex Parte Banning was a probate action commenced by motion on 2 May 2018 for revocation of the grant of probate. It was heard and the subject of reasons delivered orally at the conclusion of the hearing on 12 October 2018. Seven affidavits had been filed. The circumstances of that probate action were that the executor had died following him suffering from dementia, and in effect the application was essentially unopposed.[19] It was in that context that the learned Judge stated that he did not consider that the commencement of the proceedings by way of motion, rather than writ, infected the proceedings such that they should not be heard and determined.
[19] Re Banning; Ex Parte Banning [2], [14].
Vaughan J also noted that s 29 of the Administration Act 1903 (WA) applies to the revocation of a grant of letters of administration as distinct from the revocation of a grant of probate, for which the court relies upon its inherent jurisdiction.[20]
[20] Re Banning; Ex Parte Banning [17] ‑ [18] citing The Estate of Erminia Agnes Rogers v Rogers [15] ‑ [16], [22], [28] ‑ [29], [34]; Smith v Partridge [2018] WASC 128 [25].
With respect to whether a citation should have been issued, Shane submits that the effect of a citation would have been to require Mark, in his capacity as administrator of the Deceased's estate, to deliver up the grant of letters of administration to the central office, and that the purpose of the citation being issued in compliance with O 73 r 8 of the RSC may be achieved by an order made to Mark to deliver up the grant.
As to the practical effect of delivering the grant to the central office, the plaintiff relies upon Master Sanderson's statement in Carr v Larussa Pastoral Holdings Pty Ltd[21] at [20] to the effect that the issue of a citation is an administrative action which does not affect in any legal sense the position of the administrator of the estate.
[21] Carr v Larussa Pastoral Holdings Pty Ltd [2015] WASC 300 [20].
Master Sanderson's statement is to the effect that the issue of the citation is an administrative action taken by the registrar without reference to a master or a judge and while it cannot affect in any legal sense the position of the administrator of the estate, of course it may have a profound practical effect. The learned Master also stated at [21] that all of that does not mean administration of the estate is entirely paralysed because under s 35 of the Administration Act 1903 (WA) the court may appoint a manager and receiver of the estate pending litigation, and an administrator who has returned a grant may still seek directions under s 45 of the Administration Act 1903 (WA).
Further, at [22], as to the status of the administrator once the letters of administration have been returned pursuant to the citation, in the learned Master's view, as a matter of law the person to whom the letters of administration have been granted remains the administrator of the estate, and unless and until the letters of administration are revoked, or there is an order restraining them from acting, there is no basis for suggesting the administrator cannot act on behalf of the estate.
While the plaintiff refers only to the citation of the administrator to bring in the grant, it must be appreciated that although a probate action is to be commenced by writ and proceeds by way of pleadings and the usual process of discovery to a hearing before a judge, the resulting judgment is not comparable with a judgment in an ordinary action at common law. It transfers legal property in the estate of the deceased to personal representatives and, so long as it is not revoked, it creates enforceable rights in beneficiaries.[22]
[22] Re Langton (dec'd); Langton v Lloyd's Bank [1964] 1 All ER 749.
Relevantly, all the parties to a probate action are bound by the judgment, as are persons who intervene, and also persons who have been cited to see proceedings but do not intervene, but only if the action is tried rather than compromised,[23] and an interested person who is cognisant of the proceedings, although not served with a citation, is bound by the judgment. This is a rule of substantive law peculiar to the probate jurisdiction.[24] As stated in Wytcherley v Andrews,[25] it is easy to avoid doubt by citing all persons intended to be bound, and it is prudent to cite every other interested person to see the proceedings. In that regard a citation might be issued to multiple parties, such as under O 73 r 5, not just the executor or administrator under O 73 r 2 and r 8.
[23] Wytcherley v Andrews (1871) LR 2 P & D 327.
[24] Re Langton (dec'd); Langton v Lloyd's Bank.
[25] Wytcherley v Andrews (1871), 328, 329.
The defendants' submissions
All defendants with the exception of the Public Trustee are unrepresented.
The defendants were provided with the opportunity to file submissions in reply to Shane's submissions. Their submissions are summarised below.
The first and second defendant, Mark, filed detailed submissions which may be summarised as follows:
(a)The grant should not be surrendered to the court. Amongst other reasons, there is a property to be sold for which it is required and delivery up of the grant to the central office would impede the sale causing harm to the estate. The only one rational intention of the framers of O 73 r 8 requiring issue of a citation is to allow the court to suspend the administration in order to protect the estate and all of the beneficiaries from potential harm by an administrator, but there is no harm being done in this case.
(b)Shane's arguments are in effect that no matter how small, how false, or with what malicious forethought exists, any party of standing shall have, upon application, the administration automatically suspended.
(c)There is substantial injustice in the action continuing, arising from the deliberate failure of Shane to commence the proceedings correctly and with material consequences engendering an intolerable state of injustice which the court cannot and should not simply attempt to regularise.
(d)Certain individuals have either not been joined or been improperly joined, and in the case of the third defendant, Mike, deliberately not served and an affidavit sworn falsely as to his service. Mark submits that the failure to serve Mike is not merely an irregularity but a complete perversion of the process and inordinate injustice which itself should satisfy any requirement to have the action withdrawn.
(e)Shane has deliberately used an originating summons to avoid preparing a statement of claim.
(f)Case authorities referred to by the plaintiff bear no factual similarity to the Deceased's estate.
(g)A writ of summons with a statement of claim will compel Shane to be clear and succinct as to the action and enable to the Mark to properly prepare a defence having a clear understanding of what the allegations against him are rather than having to determine that from an affidavit of 10 pages with 159 pages of attachments.
(h)As to the appropriate orders, first that the proceedings should be discontinued and commenced again properly. Alternatively, if the proceedings are not ordered to be discontinued, then Mark submits that Shane should file and serve a statement of claim or the court devise a remedy for the state of the defendants not being able to determine the issues to enable them to file a defence. If the court does not order the discontinuance of the action then Mark submits that the court should determine who has standing as defendants and refuse the proposed order that Mark to deliver up the grant of letters of administration to the central office.
Much has been made by Mark and Mike in their submissions of Mike as the third defendant not having been served and the injustice arising. There is an affidavit of service sworn 2 January 2020 on the court file of both the originating summons and Shane's Affidavit upon Mike. Mike has not filed an appearance in the proceedings but has communicated with the court by email on 10 February 2020. He was emailed copies of the originating summons and orders made 11 February 2020 by the court on 11 February 2020. He emailed the court again on 24 and 25 February 2020 with informal submissions. To the extent those submissions are relevant in responding to Shane's submissions, they are to the effect that the case should not proceed and there should be no costs payable to Shane's solicitors.
A party may by their conduct be stopped by their conduct from denying that they have been served. If Mike does not enter an unconditional appearance but participates in an application in the action on its merits, he may be treated as if he had been duly served.[26]
[26] Boyle v Sacker (1888) 39 Ch D 249, 252.
I am satisfied that Mike is aware of the proceedings, has taken steps to email the court three times, including to file written submissions denying service and the plaintiff's submissions the subject of these reasons, and has chosen not to file an appearance despite attempting to participate in the action on its merits.
On 14 February 2020 the fifth defendant, the Public Trustee, filed a notice of intention to abide the decision of the court.
Gail's submissions as the sixth defendant focus on distinctions between the factual circumstances in Re Banning; Ex Parte Banning and the facts of this case, referred to further below.
Gail submitted that without a writ the defendants are left to rely upon the plaintiff's affidavit which focuses primarily upon issues between the plaintiff and first defendant, there is concern that Kathleen as the seventh defendant may end up paying for the costs of the dispute, and concern that the proceedings commenced by originating summons rather than writ may have the aim of making a claim against the surety provided by Kathleen.
Gail also submitted that if the irregularity is instead aimed at addressing failure to properly administer the Deceased's estate to correct distributions made inconsistently with the Administration Act 1903 (WA), then seeking orders to address that aim would be preferable than revoking the grant.
Kathleen filed informal submissions by email. Her objections are as to the relief sought and the affidavit in support of the originating summons. She submits that the process should begin again or rewritten to make clear the allegations of breach of duties.
Issues arising from the originating summons and Shane's Affidavit
If an applicant for revocation has serious concerns as to the conduct of an administrator or executor sufficient to cause them to apply for removal, then on application under O 73 r 2 and O 73 r 8 a citation should be issued upon approval by the court before commencement of the proceedings by writ. Further, an application for orders made under s 35 of the Administration Act1903 (WA) for appointment of a receiver and manager pending litigation, or under or s 45 for the settlement of any question arising in the administration, may be appropriate to address such concerns on an interim basis prior to the court determining the substantive application under s 29 for revocation of the grant.
If a grant were to be revoked, to ensure the proper administration of the unadministered estate and to enable a proper accounting to be undertaken, it would also be necessary for the former executor to deliver up to the registry all instruments of title, records of bank accounts or other estate property to be held pending a further grant, and potentially for the former administrator to be required to appear before a registrar of the court, for examination by or at the instance of any newly appointed administrator to answer questions on oath or affirmation about the nature and extent of his partial administration and the location of any unadministered estate assets as well as to give an account of the period of his incomplete administration.[27]
[27] The Estate of Erminia Agnes Rogers v Rogers [37], with orders made at [38] – [40].
The following issues arise from the claim being commenced by originating summons in the current circumstances:
(a)No citation has been issued prior to the commencement of the proceedings requiring Mark to bring in the grant in compliance with O 73 r 2(2) of the RSC or otherwise to cite interested parties. While I make no determination as to the substantive issues arising in the proceedings, most significantly, whether the grant to Mark should be revoked, the fact that no citation has been issued to Mark to bring in the grant means that he remains in possession of the grant and he continues to have the ability to administer the estate, including to be able to transfer the estate property and produce the grant as evidence of his authority. That is regardless of any concerns Shane has had to give rise to the application.
(b)No writ has been filed in compliance with O 73 r 2(1) of the RSC. A writ must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action.[28] If the originating summons were to be treated as if it were an indorsed writ, in this case it sets out the relief sought but there is no stated legal basis for the relief sought and upon which such orders may be made, such as pursuant to s 29 of the Administration Act 1903 (WA), and there is no alleged factual basis for seeking such relief, such as for failure to administer the estate or the administrator breaching his duties. It simply seeks the revocation of the grant to Mark, delivery up of the grant, the appointment instead as administrator of the Public Trustee and costs.
[28] O 6 r 1(1) of the RSC.
While much could be said about whether the claim in the originating summons would constitute an adequate indorsement of a writ, fundamentally it must inform defendants of the nature of the claim made and relief sought, enable determination of any relevant limitation period and set out the metes and bounds within which the statement of claim must be framed.[29] At present, the content of the originating summons does not fully meet the requirements of an indorsement to a writ, and the orders which would be necessary from a practical perspective if the grant to Mark were revoked, such as those set out in The Estate of Erminia Agnes Rogers v Rogers[30] are not stated. The failure to properly indorse the claim on a writ is an irregularity.[31]
[29] ABB Service Pty Ltd v Hetherington [2001] WASCA 235 [7] ‑ [10], quoted in Glendinning v Cuzens [2009] WASCA 21 [26], [29].
[30] The Estate of Erminia Agnes Rogers v Rogers explained at [37], with orders made at [38] ‑ [40].
[31] Glendinning v Cuzens [27].
A significant consequence of that non‑compliance is that there is no clear statement of claim setting out the basis upon which Shane claims Mark should be removed as administrator. It is not appropriate for the defendants, in particular Mark, to have to search for allegations buried within a lengthy affidavit and the documents attached to it. Mark does not have any outline of the case to be met, let alone a precise outline, to enable him to file a defence. As the issues are not clearly defined, the scope of documents relevant for discovery is unclear. The burden of proof and scope of what must be proved are not currently known, and the relevance of evidence cannot be determined.
Fundamental to the relief sought is that the plaintiff seeks orders for the appointment of the Public Trustee as administrator of the Deceased's estate in place of Mark if he is removed. The legal basis for the Public Trustee's proposed appointment if Mark is removed is not stated or clear. In that regard, s 25 of the Administration Act 1903 (WA) states:
25.Persons entitled to administration
(1)The Court may grant administration of the estate of a person dying intestate to the following persons (separately or conjointly) being of full age of 18 years, that is to say to –
(a)one or more of the persons entitled in distribution to the estate of the intestate;
(b)any other person, whether a creditor or not, if there be no such person entitled as aforesaid resident within the jurisdiction and fit to be so entrusted, or if the person entitled as aforesaid fails, when duly cited, to appear and apply for administration.
Applying s 25 to the current circumstances, Mark as a person entitled in distribution was granted letters of administration. If the grant to him is revoked, then one or more other persons entitled in distribution to the Deceased's estate may be appointed administrator. If there is no such person entitled under s 25(1)(a) resident within the jurisdiction and fit to be so entrusted, or if duly cited and failing to appear and apply for administration, then the court may grant administration to any other person whether a creditor or not. It is not clear whether the plaintiff seeks for the Public Trustee to be appointed on the basis that they are the executor of Clancy Jo's estate, and therefore fall within s 25(1)(a), or whether they are 'any other person' for the purpose of s 25(b), or for example, pursuant to s 10 of the Public Trustee Act 1941 (WA) where the Public Trustee applies and the court considers it expedient and proper. The issue is relevant to the pleadings and evidence required, including as to who is applying for such orders and whether the Public Trustee itself consents to or seeks those orders.
While there are allegations by the defendants in their submissions that the commencement of the proceedings by originating summons and affidavit rather than writ was deliberate, there is no evidence before me that that was the case.
Shane's Affidavit refers to his summons to revoke the grant to Mark pursuant to s 29 of the Administration Act 1903 (WA). That affidavit, but not the originating summons, makes reference to the provision.
The affidavit contains numerous allegations relating to Mark expressly and by attachment of documents. While some documents attached may be relevant as evidence for hearing the claim, there are parts of the affidavit and attachments which are inflammatory and arguably inadmissible and which ought properly to be struck out if the affidavit were to be relied upon. The affidavit includes:
(a)alleged facts without proper foundation;
(b)statements of opinion about the value of the land and reasonableness of actions relating to the land but without Shane having any expertise; and
(c)statements raising concerns and opinions but without expressly stating the facts to support the application for removal sought.
Without descending to the detail of the affidavit, there is reference to and there are allegations of:
(a)significant conflict in the family, particularly between Shane and Mark, and which has given rise to significant communication problems, and alleged aggression, violence and abuse;
(b)failure to set out a detailed distribution plan for the estate;
(c)unreasonable delays since the grant on 3 November 2015 and conduct in respect of a property forming part of the estate;
(d)conflict of interest;
(e)provision of a false surety's guarantee; and
(f)the impact of the above issues on Shane's health.
The affidavit should not remain on the court record in current form if the matter proceeds. If the matter were to proceed upon pleadings, it would not be required in any event.
Can the irregularities be remedied?
Adopting the remedial approach referred to by Martin CJ[32] would see me issue a direction to the effect that the originating summons be treated in all respects as if it were a writ generally indorsed and that it be made available for public inspection as if it were a writ, as occurred in that case, and further direct that the proceedings continue in all respects as if commenced by a writ. That would result in a statement of claim being filed to which the defence may also be pleaded.
[32] Corruption and Crime Commission of Western Australia v McCusker AO QC [2009] WASC 44 [13].
The alternative approach is for the proceedings to be discontinued, the plaintiff then make application pursuant to O 73 r 8 for a citation to be issued to Mark to bring in the grant, and potentially citations pursuant to O 73 r 5, and following compliance, for a writ to be filed rather than an originating summons in compliance with the requirements for a probate action. A statement of claim, perhaps filed separately to the writ, would be necessary to properly plead the claim.
Rules and forms of procedure are not ends in themselves. They are but a means to an end, which is the attainment of justice. Rules as to parties are means to secure that all persons interested in asserting or resisting a claim shall be heard before judgment is given.[33]
[33] Union Bank of Australia v Harrison, Jones and Devlin Ltd[1910] HCA 44, Griffith CJ.
On the other hand, the general position is that a judge cannot dispense with the requirements of the RSC unless the RSC give him or her power to do so. Further, when a power is given to him or her subject to a condition, the judge cannot, by relying upon inherent powers, escape from the necessity of ensuring that the condition is fulfilled.[34]
[34] Doyle v Commonwealth [1985] HCA 46, Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ.
In this case there is no need to rely upon inherent powers. As specified in O 1 r 4A of the RSC:
The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd,[35] the High Court said:
[56]The evident intention and the expectation of the CPA [O 1 r 4A and r 4B] is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.
[35] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46.
While Shane relies upon the fact that the court may rectify any omission or mistake in practice or procedure so long as it can do so without injustice, and by appropriately formulated orders regularise an irregularity, the difficulties in this case are that:
(a)the originating summons has been issued without a citation;
(b)even if the originating summons were treated as if the proceedings were commenced by writ and it stood in the place of the writ, it does not adequately indorse the claim; and
(c)Shane's Affidavit should be uplifted and removed from the court file.
The irregularity would cause injustice to the defendants, and in particular Mark, if the effect of those difficulties could not be regularised by appropriately formulated orders.
Disposition
While it is the case that the facts of Re Banning; Ex Parte Banning differ from the circumstances of this case, I must adopt the approach taken by Vaughan J in Re Banning; Ex Parte Banning, Martin CJ Corruption and Crime Commission of Western Australia v McCusker AO QC[36], and the Court of Appeal in Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd and R v S to rectify any omission or mistake in practice or procedure so long as I can do so without injustice,[37] and in the exercise of discretion, by appropriately formulated orders, to regularise an irregularity.[38] I do so in accordance with O 2 r 1(1) and (3) of the RSC.
[36] Corruption and Crime Commission of Western Australia v McCusker AO QC [10] ‑ [14].
[37] Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [52].
[38] R v S [28].
In the exercise of my discretion I consider that I am able to regularise the existing proceedings by appropriately formulated orders and have them proceed as in all respects as if commenced by writ, without causing injustice to any of the parties in this case, by making the following orders:
(a)The originating summons be treated in all respects as if it were a writ generally indorsed and that it be made available for public inspection as if it were a writ.
(b)The proceedings continue in all respects as if commenced by a writ.
(c)The affidavit of Shane Robert Hastings filed 17 December 2019 be removed from the court record.
(d)The plaintiff file and serve any application to amend the originating summons within 14 days.
(e)In the event that the plaintiff applies to amend the originating summons, the defendants file and serve any response to the application within 14 days of being served with the application, such application to be determined on the papers.
(f)In the event that the plaintiff does not apply to amend the originating summons, the plaintiff file and serve a statement of claim within 14 days.
(g)The defendants file and serve any defence and any counterclaim within 14 days of being served with the statement of claim.
(h)The plaintiff file and serve any reply to any defence and defence to any counterclaim within a further seven days.
(i)An appropriate order as to costs.
In considering the issues and arriving at the conclusion I have, I am also mindful of the time and expense already been incurred in relation to the proceedings and further delay that would be caused if there was a requirement to commence fresh proceedings by citation and writ.
The plaintiff proposed that the court should order Mark to deliver the grant to the central office of the court. I do not intend to make such orders or any orders relating to the delivery up of the grant. That is because:
(a)no application has been made for a citation to be approved and issued with a supporting affidavit;
(b)no application has been filed for the delivery up of the grant on a temporary basis pending litigation under s 35 of the Administration Act 1903 (WA), only the application for revocation made in the originating summons, which is under s 29;
(c)given that Shane has failed to take steps to have a citation issued, it is for Shane to make such an interlocutory application as he may consider necessary and appropriate for the grant to be brought in or for orders limiting Mark's authority or for the appointment of a temporary administrator;
(d)as the learned Master stated in Carr v Larussa Pastoral Holdings Pty Ltd,[39] even once the letters of administration have been returned pursuant to the citation, as a matter of law the person to whom the letters of administration have been granted remains the administrator of the estate, and unless and until the letters of administration are revoked, or there is an order restraining them from acting, there is no basis for suggesting the administrator cannot act on behalf of the estate. There is no application to restrain the administrator from acting; and
(e)an application for orders under s 35 of the Administration Act 1903 (WA) must be made to the Master by summons.[40] While I could have issued a citation I do not have the authority to determine an application under s 35.
[39] Carr v Larussa Pastoral Holdings Pty Ltd [22].
[40] O 73 r 22 of the RSC.
The outcome addresses the main concerns raised by the defendants including the non‑surrender of the grant, the need for Shane to clearly and concisely set out in a statement of claim the cause of action and material facts so that Mark has a clear understanding of the case put against him which he must answer, and for which a defence can be clearly set out. It also addresses the issues arising from Shane's Affidavit.
While there have been issues raised in the submissions as to service of Mike and joinder of parties, those matters do not impact this decision or influence the outcome. It is for the court to regulate the process and determine whether the irregularities can be rectified without injustice.
While I will hear the parties as to costs, the only parties represented in the proceedings to date have been Shane and the Public Trustee. In circumstances whereby the plaintiff has failed to comply with O 73 of the RSC giving rise to the need for this determination, my preliminary view is that the plaintiff should pay the defendants' costs, if any, arising from the plaintiff's non‑compliance with O 73 of the RSC and determination of the issues the subject of these reasons, to be taxed if not agreed.
That would have the consequence that even if Shane is ultimately entitled to an order permitting him to recover costs in the cause of the action in these proceedings it would be unreasonable to permit Shane to recover the costs of:
(a)preparing Shane's Affidavit; and
(b)submissions as to why the proceedings should proceed notwithstanding Shane's failure to comply with O 73,
such costs being unnecessarily incurred and incurred by reason of the failure to follow the correct process. In that regard, while the irregularities can be remedied, the estate and the parties should not bear the costs of those failures.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AP
Court Officer18 JUNE 2020
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