Martin Theodore De Haas as one of the Executors of the Estate of Raymond Michael Mettam (Dec) v Murcia & Associates (A Firm)

[2001] WASC 4

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   MARTIN THEODORE DE HAAS as one of the Executors of the Estate of RAYMOND MICHAEL METTAM (DEC) -v- MURCIA & ASSOCIATES (A FIRM) [2001] WASC 4

CORAM:   MILLER J

HEARD:   14 AUGUST 1998

DELIVERED          :   14 AUGUST 1998

PUBLISHED           :  11 JANUARY 2001

FILE NO/S:   PRO 1215 of 1998

BETWEEN:   MARTIN THEODORE DE HAAS as one of the Executors of the Estate of RAYMOND MICHAEL METTAM (DEC)

Appellant

AND

MURCIA & ASSOCIATES (A FIRM)
Respondent

Catchwords:

Probate - Non-Contentious Probate Rules, r 43A(d) - Leave of Registrar for access to documents - Appeal from decision of Registrar - Form of appeal

Legislation:

Non-Contentious Probate Rules, r 5, r 43A(d)

Rules of the Supreme Court 1971, O 40 r 4

Result:

Directions given in relation to appropriate form of appeal

Representation:

Counsel:

Appellant:     Mr M Clay

Respondent:     Mr G A Pestell

Solicitors:

Appellant:     Martin de Haas

Respondent:     Murcia & Associates

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

Nil

Case(s) also cited:

Nil

1. MILLER J:  Probate of the will of Raymond Michael Mettam, late of 19 Lockett Crest, Winthrop, Western Australia, company director, deceased, was, on 7 April 1998, granted to Wendy Gillian Mettam and Martin Theodore De Haas, executors appointed under the will of the deceased.

2. By letter dated 16 April 1998 Messrs Murcia & Associates, barristers and solicitors, wrote to the Probate Registry of the court requesting on behalf of certain named clients a copy of the grant of probate and a copy of the statement of assets and liabilities of the estate of the deceased.  In that letter Murcia & Associates claimed that the deceased was liable to their clients in damages in respect of an action in the District Court at Perth (No 4383 of 1997) in which various parties had sued the deceased and others.

3. A notation on the letter of Murcia & Associates to the Probate Registry indicates that on 17 April 1998 Registrar Watt approved of the provision of a copy of the statement of assets and liabilities of the deceased estate to Murcia & Associates.  This fact became known to Mr De Haas, one of the executors of the will of the deceased some time prior to 18 June 1998, as on that date Mr De Haas wrote to the Principal Registrar of the court making complaint that the clients of Murcia & Associates had gained access to the statement of assets and liabilities of the deceased and had published information contained therein.

4. By letter dated 23 July 1998 the Acting Principal Registrar wrote to Mr De Haas, giving reasons why Registrar Watt had made available a copy of the statement of assets and liabilities to Messrs Murcia & Associates.  Relevantly, the letter stated:

   "The Non‑Contentious Probate Rule 43A(d) permits 'Any person' access to 'any other document', 'with the leave of the Registrar ...'.  The Rule is not subject to the approval of the applicant nor does it require any notice to him.  It is a matter that is the sole concern of the person applying and the Registrar, and accordingly you are not entitled to know why the Registrar acceded to the request from Murcia & Associates.  Nevertheless, I am prepared to inform you that where solicitors inform the Registrar that they are engaged in commercial litigation involving an estate, as did Murcia & Associates, the Registrar considers this to be a sufficient reason to release a copy of the Rule 9B(1) statement."

5. By notice of appeal dated and filed 28 July 1998, Mr De Haas sought to appeal the decision of Registrar Watt pursuant to the provisions of O 60A r 4 of the Rules of the Supreme Court 1971. The notice of appeal named Mr De Haas as appellant and Murcia & Associates as respondent (applicant). It was to a Master in Chambers, and came before Master Sanderson on 12 August 1998. Master Sanderson adjourned the matter to Judges' chambers on 14 August 1998 by reason of the provisions of r 5 of the Non-Contentious Probate Rules which provide that a person aggrieved by an order, decision or requirement of the Registrar may appeal therefrom to a Judge in chambers.  Such an appeal is (r 5(2)) an appeal by notice in writing to attend before the Judge and it is to be filed in the Registry within five days after the order, decision or requirement complained of, or within such further time as may be allowed by a Judge or the Registrar.  It is (r 5(3)) to be served on every person other than the appellant who appeared or was represented before the Registrar.

6. As the original decision of Registrar Watt was made on 17 April, the appeal lodged on 28 July was well out of time.  However, reasons for Registrar Watt's decision were not given to Mr De Haas until 23 July 1998 and I was informed from the Bar table that this letter was not received by Mr De Haas until 27 July.  In the circumstances I granted an extension of time within which to file the notice of appeal to 28 July 1988, the day upon which it was in fact filed.

7. At the hearing before me on 14 August I was troubled by the manner in which the notice of appeal had been formulated.  It seems to me to be inappropriate for the appeal proceedings between Mr De Haas and Murcia & Associates, and, instead, I am of the view that the appropriate formulation of the notice of appeal should be as follows:

   "In the Supreme Court

   of Western Australia  P1215 of 1998

   In the matter of the Estate of
     Raymond Michael Mettam
     late of 19 Lockett Crest
     Winthrop in the State of
     Western Australia Company
     Director Deceased

   AND

   In the matter of the decision
     of Registrar Watt to provide
     to Murcia & Associates a copy of
     the Rule 9B(1) statement made
     pursuant to Non-Contentious

   Probate Rule 43A(d)

   ___________________________________________________

   NOTICE OF APPEAL BY
   MARTIN THEODORE DE HAAS

   one of the Executors of the Estate of the Deceased

   __________________________________________________"

8. A notice of appeal formulated in this way can include the grounds of appeal which are formulated in the document filed 28 July 1998 and a copy thereof will need to be served upon Messrs Murcia & Associates. Although there was no hearing before the Registrar in relation to which Murcia & Associates appeared or were represented, r 5 of the Non‑Contentious Probate Rules should be interpreted to mean that any party who had made representations to the Registrar should be served with a notice of appeal against the Registrar's decision.  It would then be for Murcia & Associates to decide whether or not they wish to appear upon the hearing of the appeal. 

9. During the hearing on 14 August I made available to counsel for Mr De Haas a copy of the letter from Murcia & Associates to the Probate Registry dated 16 April 1998.  A copy of that letter had previously been sought unsuccessfully from the Registrar, access to the letter being denied by letter from the Acting Principal Registrar to Mr De Haas dated 6 July 1998.  At the hearing before me counsel for Murcia & Associates raised no strong objection to a copy of the letter being made available to counsel for Mr De Haas, and in all the circumstances, it seemed to me essential that Mr De Haas should have a copy of that letter, grounding as it did the decision of Registrar Watt of 17 April 1998.

10. What is now required to be put before the court are:

    (1)a reformulated notice of appeal in accordance with the directions I have made herein;

    (2)     an affidavit of Mr De Haas exhibiting

    (i)a copy of the letter from Murcia & Associates to the Probate Registry;

    (ii)a copy of Mr De Haas' letter to the Principal Registrar of 18 June 1998;

    (iii)a copy of the Acting Principal Registrar's letter to Mr De Haas of 6 July 1998;

    (iv)a copy of Mr De Haas' letter to the Acting Principal Registrar of 20 July 1998; and

    (v)a copy of the Acting Principal Registrar's letter to Mr De Haas of 23 July 1998.

11. The presentation of these materials to the court will provide what is necessary to determine the appeal under r 5 of the Non‑Contentious Probate Rules.

12. On 14 August I deferred for further consideration the question of costs incurred by Messrs Murcia & Associates in appearing as respondents to the notice of appeal filed on 28 July 1998.  This question can be determined when the matter is brought on again in chambers with the appropriate papers and reformulation of the notice of appeal.