McArthur v Gerhard Janssen as attorney pursuant to section 34 Administration Act for Veronika Logar
[2024] WASCA 15
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MCARTHUR -v- GERHARD JANSSEN as attorney pursuant to section 34 Administration Act for VERONIKA LOGAR [2024] WASCA 15
CORAM: BUSS P
VAUGHAN JA
LUNDBERG J
HEARD: 10 JANUARY 2024
DELIVERED : 9 FEBRUARY 2024
FILE NO/S: CACV 30 of 2023
BETWEEN: ASHLEE MARIE MCARTHUR
KARLY NICOLLE FITZPATRICK
Appellants
AND
GERHARD JANSSEN as attorney pursuant to section 34 Administration Act for VERONIKA LOGAR
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER SANDERSON
Citation: MCARTHUR -v- GERHARD JANSSEN as attorney pursuant to section 34 Administration Act for VERONIKA LOGAR [2023] WASC 59
File Number : CIV 1352 of 2022
Catchwords:
Succession - Application by plaintiffs for orders to examine a solicitor as to testamentary intentions of the deceased - Summons filed pursuant to O 73 r 20(1) of the Rules of the Supreme Court 1971 (WA) - Plaintiffs sought alternative orders to require solicitor to attend mediation - Whether original relief pursuant to O 73 r 20(1) had been abandoned - Whether Master failed to determine application on its merits - Whether procedural fairness denied
Succession - Whether orders should be made by appellate court pursuant to O 73 r 20(1) - Historical origins of the rule - Proper construction of rule does not support making of the orders
Practice and procedure - Whether alternative declaration should be granted to the effect that legal professional privilege has been waived - Whether court has power to override privilege - Court has no power to make orders to this effect - Nature of privilege as a rule of substantive law
Practice and procedure - Whether case management powers in O 4A r 2(1) support making of the orders sought by the plaintiffs - Discretionary considerations do not support the making of the orders - Turns on own facts
Legal practitioner - Role and duties of person appointed by the court as administrator of an estate - Importance of independence of counsel
Legislation:
Administration Act 1903 (WA), s 8, s 10, s 13, s 14, s 29, 34, s 43
Administration and Probate Act 1919 (SA), s 24, s 25
Court of Probate Act (20 & 21 Vict c.77) 1857 (UK), s 24, s 26
Court of Probate Act (21 & 22 Vict c.95) 1858 (UK), s 23
Probate and Administration Act 1898 (NSW), s 150
Rules of the Supreme Court (Revision) 1965 (UK), O 76 r 19
Rules of the Supreme Court 1971 (WA), O 4A r 2, O 4A r 4, O 4A r 5A, O 36 r 2(1), O 36 r 7(1), O 38 r 1(1), O 73 r 20(1)
Testamentary Causes Act 1867 (SA), s 16
Legal Profession Uniform Conduct (Barristers) Rules 2015 (WA)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellants | : | J T London |
| Respondent | : | Prof Dr G Janssen |
Solicitors:
| Appellants | : | Robertson Hayles Lawyers |
| Respondent | : | Janssen & Maluga Legal Pty Ltd |
Case(s) referred to in decision(s):
Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475
Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333
Boyce v Bunce [2015] NSWSC 1924
Burgess (as administrator of the estate of Burgess) v Burgess [2018] WASC 279
Chesney v Tognola [2011] QSC 340
Civmec Construction & Engineering Pty Ltd v Mann [No 2] [2023] WASC 99
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49
Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502
Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543
Glencore International AG v Federal Commissioner of Taxation [2019] HCA 26; (2019) 265 CLR 646
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [2023] WASCA 108
Hawkins v Clayton (1986) 164 CLR 539
In re Hayes' Will Trusts [1971] 1 WLR 758
In the Estate of Goodfellow (1987) 47 SASR 367
In the Estate of Koutsouliotis [2011] SASC 196
In the Estate of Re Fuld, deceased; Hartley v Fuld (Attorney General intervening) [1965] P 405
Larussa v Anna Carr as administratrix of the estate of the Late Giuseppe Larussa [2018] WASCA 127
Legal Profession Complaints Committee v Lourey [2022] WASCA 114
McArthur v Gerhard Janssen as attorney pursuant to section 34 of the Administration Act for Veronika Logar [2023] WASC 59
McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434
McIntosh v McIntosh [2014] QSC 99
McMeckan v Aitken [1891] VicLawRp 64; (1891) 17 VLR 301
Munro v Munro [2017] SASC 48
North West Pilots Pty Ltd v Daniel [2023] WASCA 122
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
Re Estates Brooker-Pain and Soulos [2019] NSWSC 671
Re Kouvakas [2014] NSWSC 786
Sala Tenna v Di Lena [2020] WASC 426
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4
SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138
Waller v Waller [2009] WASCA 61
Webb v Tang [2023] WASCA 119
Welch v Phillips (1836) 1 Moo PCC 299
Wilson v Metaxas [1989] WAR 285
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40
BUSS P & VAUGHAN JA:
The factual and procedural background to this appeal is set out in Lundberg J's reasons for decision. We too would dismiss the appeal. Our reasons for dismissing the appeal are as follows.
By chamber summons dated 15 June 2022 the appellants made an application that Ms Gangemi attend court for examination relating to the deceased's testamentary intentions. The appellants' application sought that the examination in chief be conducted by affidavit. It proposed an order that the appellants file and serve an affidavit of Ms Gangemi's evidence in chief no later than 14 days before the date of the examination.
Grounds 1 and 2, taken together, in effect allege error on the basis that the master failed to consider and determine the appellants' substantive application as summarised immediately above. The grounds were advanced and debated at the appeal hearing conformably with this understanding.[1] The respondent conceded that the master did not expressly consider and determine the substantive application.[2] The respondent submitted, however, that the master dealt with and determined the appellants' substantive application inferentially at [6] of the master's reasons.[3] That paragraph of the master's reasons reads:
Faced with the defendant's [ie the respondent's] objections, counsel for the plaintiffs [ie the appellants] changed tack. He sought an order for mediation with an order that Ms Gangemi be permitted to attend the mediation and take such part in that mediation as the mediator thought fit. The defendant opposed that order. He submitted that having Ms Gangemi at the mediation would serve no useful purpose and would complicate matters in an inappropriate way. After hearing submissions from counsel for the plaintiffs, I indicated that I would not make an order permitting Ms Gangemi to attend the mediation. I said I would publish reasons for my decision. These are those reasons.
[1] Appeal ts 6, 38 - 39, 43 - 44.
[2] Appeal ts 45.
[3] Appeal ts 43 - 44.
The passage relied on by the respondent cannot be read as the master having inferentially considered and determined the appellants' substantive application. It provides, in terms, that the master was instead providing reasons for an alternate application. Rather than considering and determining the appellants' substantive application the master addressed an alternate proposal for an order permitting Ms Gangemi to attend a mediation.
As the respondent conceded,[4] with respect correctly, the failure to consider and determine the appellants' substantive application meant there was an error of law unless there had been an abandonment of the application.
[4] Appeal ts 43.
Initially the respondent accepted that the appellants had not abandoned their substantive application.[5] However, having completed his oral address to this court, the respondent reconsidered his position.[6] The respondent said there had been an abandonment. This, apparently, was on the basis that the appellants had filed a minute of proposed orders dated 17 August 2022 for the purpose of a directions hearing before the master the following day.[7] The minute dated 17 August 2022 is included in the Blue Appeal Book.[8] It provides for three alternatives. First, an alternate order that Ms Gangemi be permitted to attend at a mediation. Second, an order that the substantive application be adjourned to a special appointment. Third, orders in terms of the appellants' substantive application.
[5] Appeal ts 43.
[6] Appeal ts 47.
[7] Respondent's submissions par 19 WAB 41.
[8] BAB 52 - 55.
The respondent argued that, so far as the appellants were later granted the second of the alternative orders, there had been an abandonment of the orders sought by the substantive application.[9]
[9] Respondent's submissions par 16 WAB 40.
The respondent's proposition is nonsensical when it is remembered that the second of the alternative orders was an order for the substantive application to be adjourned to a special appointment. Plainly there could be no abandonment of the substantive application where what was contemplated by the second alternative was consideration and determination of the substantive application at a special appointment.
Examination of what was said at the directions hearing on 18 August 2022 confirms the lack of merit in the respondent's argument. At the directions hearing, counsel for the appellants explained that, by the minute dated 17 August 2022, the appellant had three alternative proposals for how the matter could proceed 'at this point'. Counsel suggested that the preferable proposal 'rather than proceeding straight to the hearing' of the substantive application was that there be a mediation conference at which Ms Gangemi had permission to attend. The respondent resisted that proposal.[10] The master said that he was 'tempted' to make the mediation orders but before doing so intended to speak to the principal registrar.[11] The master said that he would discuss the matter with the principal registrar and would provide an answer early the next week.[12] The master went on to say:
I think the real question is whether or not a mediation in these terms is going to work. If the registrar's view is that it won't, for one reason or another, then I won't make the mediation order, it's as simple as that. So I don't think anything you could offer would assist, with respect. I don't mean that in any pejorative sense.
I think it's just a matter of finding out whether a registrar - or the principal registrar believes that this system is workable. If it isn't, that's the end of the matter and I will deal with the application on its merits.[13] (emphasis added)
[10] ts 23 - 24.
[11] ts 24.
[12] ts 24.
[13] ts 25.
Thereafter, on 5 September 2022, the master made an order that the appellants' summons filed on 15 June 2022 be adjourned to a special appointment.
Two things are obvious from this review of the procedural steps in the primary proceedings. First, there was no abandonment by the appellants of their substantive application; while there was an alternate proposal in addition to the orders sought by the substantive application, it remained the case that the appellants pursued the orders sought in the substantive application. Second, so far as the master did not make the mediation order - instead providing for adjournment to a special appointment - there was to be a hearing and determination of the substantive application at a special appointment.
On 16 January 2023, at the hearing of the special appointment, counsel for the appellants made oral submissions in support of the substantive application.[14] That, at the time, was well understood by the master to be what was before the court for determination. The master observed that the appellants' position was that they would like affidavit evidence of Ms Gangemi to be filed.[15] However, the master's reasons erroneously fail to consider and determine the appellants' substantive application. Instead, as can be seen from the master's reasons as reproduced at [71] below, the master did no more than provide reasons for not making an order permitting Ms Gangemi to attend a mediation. In doing so the master erred in law. This was not simply an error of law by failing to consider and determine an essential issue; it was an error of law by failing to consider and determine the substantive application before its dismissal.
[14] ts 28 - 33.
[15] ts 29.
Grounds 1 and 2 should be upheld. It becomes unnecessary to determine ground 3. It is readily apparent, however, that ground 3 is completely without merit. The appellants complain about the master having regard to an irrelevant consideration based on an aside that the master made at a directions hearing on 11 August 2022. The simple answer to ground 3 is that this was not something that guided or affected the master's decision in dismissing the appellants' application - what was said on 11 August 2022 at an earlier directions hearing was not relied on by the master in his written reasons of 3 March 2023 for dismissing the appellants' application. Ground 3 fails.
The appellants' success on grounds 1 and 2 has implications for leave to appeal. The respondent accepted that there should be leave to appeal if the court was satisfied that the master failed to consider and determine the appellants' substantive application.[16] We agree. In deciding whether to grant or refuse leave to appeal this court considers the interests of justice. The interests of justice warrant leave to appeal in the present case as otherwise the appellants' substantive application will never be determined on its merits (it not being suggested that there was any abuse of process or other disentitling conduct or circumstances which might mean that there was a proper basis for the court to simply decline to hear the application).
[16] Appeal ts 39.
It is appropriate that this court determine the appellants' substantive application. The parties made comprehensive written and oral submissions on the merits of the substantive application. Remitting the determination of the substantive application would only cause further delay. And, importantly, as the substantive application falls to be determined on affidavit materials, this court is in as good a position as the master to determine whether Ms Gangemi ought to be ordered to attend court for pre-trial examination relating to the deceased's testamentary intentions.
The appellants grounded their substantive application in O 73 r 20(1) of the Rules of the Supreme Court 1971 (WA) (RSC). The terms of O 73 r 20(1) RSC are reproduced in Lundberg J's reasons (see [66] below). The appellants emphasised the words 'or to attend in court for examination'. They argued, by counsel, that properly construed those words permitted an order for pre-trial examination as to any of the issues in a possible or pending probate action.[17] We do not accept that construction. Nothing in the text, context or purpose of O 73 r 20(1) RSC supports that broad construction of the rule.
[17] Appeal ts 9.
As to text, the words 'or to attend in court for examination' follow the words 'requiring a person to bring into the Registry … a will or other testamentary paper'. It is tolerably clear that the words 'to attend in court for examination' take their character from the earlier text of O 73 r 20(1) RSC. The examination is ancillary or incidental to - or to further - the bringing into court of any will or other testamentary paper. The statutory purpose of the rule is to be discerned from its text and context. A reading and construction of O 73 r 20(1) RSC that it is confined to examination for the purpose of identifying the location of a deceased's will or other testamentary paper and compelling the production of any will or other testamentary paper is supported by the context of the rule. The heading to O 73 r 20(1) RSC reads 'Orders etc to bring in will etc'. And, in terms of historical context, O 73 r 20(1) RSC was modelled on O 76 r 19 of the Rules of the Supreme Court 1965 (UK) used in England and Wales. That, in turn, provided a procedural mechanism for the invocation of s 26 of the Court of Probate Act 1857 (UK) (the terms of which are reproduced in Lundberg J's reasons at [119] below). Section 26 of the Court of Probate Act allowed for pre-trial examination or interrogatories only where there were reasonable grounds for believing that a person had knowledge of testamentary scripts. That, in our opinion, confined the scope of the permitted examination - it was not available for examination at large as to a deceased's testamentary intentions.[18] Order 73 r 20(1) RSC is similarly circumscribed.
[18] See, as to the operation of s 26 of the Court of Probate Act at the time of the introduction of O 73 r 20(1) RSC, Williams & Mortimer on Executors, Administrators and Probate (15th ed, 1970) 397 - 398.
Order 73 r 20(1) RSC does not empower an examination of the kind sought by the appellants.
When, in the course of the appeal hearing, the limits of O 73 r 20(1) RSC became apparent to counsel for the appellants, it was sought to ground the order for examination in O 4A r 5A(1) RSC.[19] We agree that the power under O 4A r 5A(1) RSC is broad enough to empower the court to make an examination order of the kind provided for in the appellants' substantive application. But in considering whether to exercise the power under O 4A r 5A(1) RSC the court's discretion is to be guided by the goal and objects in O 1 r 4A and r 4B RSC. We agree with Lundberg J, for the reasons that his Honour gives (see [141] - [158] below), that case management considerations militate against the power being exercised to grant the kind of examination order sought by the appellants. In particular, the issue of client-legal privilege that has affected and will continue to affect Ms Gangemi's ability to provide evidence ought to be resolved on a question-by-question basis before a trial judge.
[19] Appeal ts 13 - 14.
Counsel for the appellants candidly informed this court that the appellants' proposal that Ms Gangemi provide an affidavit was 'to override' any claim of client-legal privilege.[20] Counsel was not, however, able to identify any relevant basis on which the court was authorised to override an otherwise valid claim to client-legal privilege.[21] Nor are we aware of a relevant basis on which the court might override an otherwise valid claim to client-legal privilege. Client-legal privilege is an important substantive right, in the nature of an immunity, which is fundamental to persons and the legal system.[22] It is not something to be subverted in the manner contemplated by the appellants' substantive application.
[20] Appeal ts 22.
[21] Appeal ts 22 - 26.
[22] Glencore International AG v Federal Commissioner of Taxation [2019] HCA 26; (2019) 265 CLR 646 [21] - [23].
On appeal the appellants advanced a new claim that had not been articulated before the master. The appellants sought an alternate declaratory order to the effect that the respondent had waived any relevant client-legal privilege.[23] It was suggested that this was a 'neater and simpler' way of making Ms Gangemi's evidence available.[24] We would not entertain a new case of this kind for the first time on appeal. The general principles relating to the exceptional cases in which a party may advance a new case on appeal are well known.[25] It is neither expedient nor in the interests of justice to entertain the new point in an evidentiary vacuum in circumstances where it will be open to the appellants to litigate the question of waiver at trial.
[23] Orders wanted par 9 WAB 33.
[24] Appellants' submissions par 70 WAB 27.
[25] See eg the synthesis in Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [65] - [67].
Accordingly, having considered and determined the appellants' substantive application on its merits, the application should have been dismissed. There is thus no basis to disturb the master's order at first instance. The master made the correct order albeit for the wrong reasons. The appeal must be dismissed.
For these reasons we would make orders that:
1.The appellant has leave to appeal against the orders of the Supreme Court of Western Australia made 3 March 2023 in action CIV/1352/2022.
2.The appeal is dismissed.
The parties should be heard on the question of the costs of the appeal. We note, however, that the respondent - a legal practitioner - appeared for himself in the appeal. In doing so the respondent accepted that in appearing before the court he did so as a barrister.[26] These matters are likely to be relevant to the question of costs having regard to the High Court of Australia's decision in Bell Lawyers Pty Ltd v Pentelow.[27]
[26] Appeal ts 2 - 3.
[27] Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333.
Separately, we agree with and endorse Lundberg J's observation that it would be highly desirable for the respondent to take advice from independent counsel as to the respondent's position in acting for himself in the primary proceedings as well as advice as to the manner in which the proceedings are being conducted.
LUNDBERG J:
Introduction and summary
This is an appeal against an interlocutory order made by the Learned Master, dismissing an application filed by the plaintiffs in a probate action which they had commenced by writ of summons.[28] The plaintiffs are the appellants to this appeal. As the appeal is from an interlocutory order the appellants require leave to appeal.[29]
[28] The probate action is CIV 1352 of 2022.
[29] Supreme Court Act 1935 (WA), s 60(1)(f).
The probate action concerns the estate of the late Mr Ivan Hudina. The estate itself is modest in size.[30]
[30] Appeal ts 27 ‑ 28.
In December 2019, on the apparent basis that Mr Hudina had died intestate, Letters of Administration were granted in respect of the deceased's estate to the respondent, Professor Dr Gerhard Janssen, who is the defendant below.[31] The grant was in common form only. The respondent is the appointed attorney for the deceased's niece (Ms Veronika Logar). The respondent was appointed pursuant to s 34 of the Administration Act 1903 (WA) (Administration Act), given that Ms Logar resides in Slovenia.[32] It is admitted that Ms Logar would be the only beneficiary of the deceased's estate if he died intestate.[33]
[31] Statement of Claim [3], BAB 9; and Defence [1], BAB 16. The probate proceedings are PRO 5070 of 2019.
[32] Section 34 of the Administration Act empowers the court to grant administration to an attorney appointed under a power of attorney by a person who is entitled to administration, where that person is, inter alia, out of the jurisdiction.
[33] Statement of Claim [2], BAB 8; and Defence [1], BAB 16.
Prof. Dr Janssen is the solicitor on the record in both the probate action and on this appeal. He also appears as counsel in both proceedings. Prof. Dr Janssen's roles in the proceedings is a matter on which it will be necessary to comment in due course.
The central issue raised by the appellants in the probate action concerns the existence of a last will and testament executed by the deceased on 2 August 2011 (the 2011 Will).[34] The appellants plead that they are the executors named in that 2011 Will and that the 2011 Will has been lost, but not revoked.[35] The 2011 Will leaves the whole of the deceased's estate to the appellants, who are the granddaughters of the deceased's late wife (Mrs Maureen Hudina nee Fitzpatrick).[36]
[34] Statement of Claim [4], BAB 9.
[35] Statement of Claim [8] and [9], BAB 10.
[36] Statement of Claim [9(d)], BAB 11.
The appellants thus seek orders in the probate action to revoke the grant of Letters of Administration and to have probate of a copy of the 2011 Will granted in solemn form to the appellants.[37]
[37] Statement of Claim [13(a)] and [13(b)], BAB 13.
The interlocutory application filed by the appellants below sought orders to enable the deceased's former solicitor (Ms Arcangela Gangemi of the firm Durand Gangemi) to provide an affidavit of her evidence‑in‑chief, and to attend court for cross‑examination prior to trial. The background to the filing of the application is elaborated on at [55] to [62] of these reasons. The application was brought by summons dated 15 June 2022 (Summons).[38] The orders were primarily sought pursuant to O 73 r 20(1) of the Rules of the Supreme Court 1971 (WA) (RSC), although additional powers were identified in the Summons.
[38] BAB 24.
To be clear, the appellants did not confine their application to compel Ms Gangemi to bring into court the 2011 Will, or any other testamentary paper, or to provide evidence as to its whereabouts. When the Summons was filed, the appellants already had possession of a copy of the 2011 Will. There was also no suggestion that Ms Gangemi held the original of the 2011 Will or had direct knowledge of its whereabouts. Further, within a month of filing the application, an order was made requiring the respondent to provide discovery of the file held by Durand Gangemi concerning the deceased's affairs, with which the respondent complied.[39] The appellants filed the Summons in order to adduce far more wide‑ranging testimony from Ms Gangemi, including as to matters which would likely be subject to a claim for legal professional privilege.
[39] GAB 4 ‑ 81.
As matters transpired, the Learned Master dismissed the Summons at the conclusion of the hearing on 16 January 2023, and published brief reasons in support thereof on 3 March 2023 (Primary Reasons).[40] Unfortunately, the Master did not address, within the Primary Reasons, the scope of the power upon which the appellants relied, namely O 73 r 20(1) RSC, nor the basis on which an order concerning Ms Gangemi's evidence should not be made. In essence, the Primary Reasons dealt with alternative relief which had been the subject of argument before the Master, namely whether an order ought be made to require Ms Gangemi's attendance at a mediation.
[40] McArthur v Gerhard Janssen as attorney pursuant to section 34 of the Administration Act for Veronika Logar [2023] WASC 59.
The appellants contend that the Master wrongly concluded that the appellants had abandoned the relief sought in the Summons and failed to determine the matter on the merits (ground 1), thus denying the appellants procedural fairness (ground 2). The appellants further contend that the Master erred in taking into account the possibility the respondent would appeal from an order granting the application, which was an irrelevant consideration (ground 3).
In the event leave is granted and the appeal allowed, the appellants invite this court to grant the orders sought within the Summons, essentially to facilitate Ms Gangemi attending in court to be examined.[41] In the alternative, the appellants seek a declaration that the respondent has waived the deceased's privilege in his communications with Ms Gangemi that relate to his testamentary intentions after the making of the will in question.[42] At the hearing of the appeal, counsel for the appellants also invited the court to override any claim for privilege.
[41] Orders Wanted [3] ‑ [8], WAB 33.
[42] Orders Wanted [9], WAB 33.
For the reasons which follow, I would grant leave to appeal in respect of grounds 1 and 2, and allow the appeal on those grounds only. However, considering the matter afresh, I would not make the orders sought by the appellants in the Summons for the reason that I consider the power in O 73 r 20(1) RSC is not capable of supporting those orders and, to the extent there is power in O 4A r 5A(1) RSC to make equivalent orders, I do not consider it would be appropriate on case management grounds to exercise that power. There are substantial case management obstacles standing in the way of making such an order, as well as the real prospect that the evidence of Ms Gangemi will require questions of privilege and confidentiality to first be determined. Those are matters properly left for determination by the trial judge.
The appellants' alternative declaration must also be dismissed, as being a form of relief beyond the power of this court to grant. So too the contention that this court can override any privilege claim.
In my view, given the course of the matter to date and the modest size of the estate, the future conduct of the probate action would benefit from being case managed. I propose that orders be made for the action to be admitted to the Commercial and Managed Cases List of the General Division to be managed by a judge, with a view to a case management conference being swiftly listed to assess whether the matter is ready for trial.
Pleadings
To put the Summons and the appeal in context, it is necessary to first briefly examine the issues which arise in the substantive probate action.
Statement of claim
As already noted, Prof. Dr Janssen was granted Letters of Administration in December 2019 in respect of the deceased's estate, as the appointed attorney of Ms Logar.[43] Prior to the probate action being commenced by the appellants, the respondent was required to return, and did return, the original grant of Letters of Administration to the court, to be held by the court for the duration of the proceedings.[44]
[43] Statement of Claim [3], BAB 9; and Defence [1], BAB 16.
[44] Letter from Janssen + Maluga Legal to the Probate Division of the Supreme Court dated 7 April 2022. This was required by O 73 r 2(2) RSC.
The appellants plead the existence of the 2011 Will,[45] and that they are the executors named in that will,[46] which leaves the whole of the deceased's estate to them. The appellants plead that the 2011 Will has been lost, but not revoked.[47]
[45] Statement of Claim [4], BAB 9.
[46] Statement of Claim [8], BAB 10.
[47] Statement of Claim [9], BAB 10.
The appellants further plead that the 2011 Will was signed by the deceased in the presence of Ms Gangemi,[48] and that Ms Gangemi prepared the 2011 Will in accordance with the deceased's instructions.[49]
[48] Statement of Claim [4(c)], BAB 9.
[49] Statement of Claim [6(b)] and [7(b)], BAB 9 - 10.
It is notable that the statement of claim provides detailed particulars under the heading 'Particulars overcoming the presumption of revocation'. In particular:
(a)The pleadings make reference to Ms Gangemi's role in drafting a previous will for the deceased in October 2008 (the 2008 Will), and in witnessing a Slovenian power of attorney for the deceased in February 2017.[50] The appellants plead that the deceased 'would have consulted Ms Gangemi again had he wanted to revoke the Will'.[51]
(b)The appellants contend that the deceased made the 2011 Will to effect 'his desire to leave his Australian estate to the granddaughters of his late wife'.[52] It is pleaded that the main asset of the estate is a property in Forrestfield which the deceased inherited from his late wife.[53] It is pleaded that the deceased orally affirmed to Ms Gangemi on at least one occasion his desire to leave the Australian estate to his late wife's granddaughters.[54]
(c)The statement of claim makes reference to real estate owned by the deceased in Slovenia (which had not been inherited from the deceased's wife). It is pleaded that the deceased executed the Slovenian power of attorney in February 2017 so that this Slovenian property could be gifted by the deceased to Ms Logar.[55]
[50] Statement of Claim [9(b)], BAB 11.
[51] Statement of Claim [9(b)], BAB 11.
[52] Statement of Claim [9(d)], BAB 11.
[53] Statement of Claim [9(c)] and [9(d)], BAB 11.
[54] Statement of Claim [9(f)], BAB 12.
[55] Statement of Claim [9(e)], BAB 12.
The particulars concerning the presumption of revocation conclude with an indication that:
Further particulars to be provided following discovery and following the examination of Ms Gangemi.[56]
[56] Statement of Claim [9(i)], BAB 12. As a general response to these matters, the respondent pleads that Ms Gangemi has not communicated the contents of any discussions that the deceased had in confidence with her prior to his death to support any of the appellants' allegations in [9(d)], [9(e)] and [9(f)] of the Statement of Claim. The pleading makes reference to email communications between Ms Gangemi and the respondent by which Ms Gangemi 'maintained the confidentiality of solicitor-client communication [sic] between her and the Deceased'. I refer to the Reply to the Defence to Counterclaim, which was filed on 31 May 2022, BAB 22B. The background to these assertions is discussed at [55] ‑ [62] below.
By way of final relief, the appellants seek orders to revoke the grant of Letters of Administration and to have probate of a copy of the 2011 Will granted in solemn form to the appellants.[57]
Failure to join Ms Logar
[57] Statement of Claim [13(a)] and [13(b)], BAB 13.
The appellants elected to join Prof. Dr Janssen as the sole defendant to the proceedings below, in his capacity as the attorney for Ms Logar and thus as the administrator of the estate. The appellants did not take steps to join Ms Logar in her capacity as the sole putative beneficiary of the estate (that is, on the assumption Mr Hudina died intestate).
Ordinarily, it would be expected that a person in the position of Ms Logar would be joined to proceedings which challenge the grant of Letters of Administration. Not only would this enable the putative beneficiary to have the opportunity to oppose the relief sought, but it would ensure all proper parties are bound by the court's final orders.
The failure to join Ms Logar as a party may have led the respondent to assume the role of contradictor in the proceedings. Typically, that would not be a role to be assumed by an administrator where the identity of the proper personal representative of the deceased is at issue in proceedings. It has created, in the present case, a degree of tension with his role as the appointed administrator. To further complicate matters, Prof. Dr Janssen has appeared throughout the proceedings, including on this appeal, as counsel on his own behalf. I will return to these matters in due course.
Defence and counterclaim
By the respondent's defence and counterclaim, Prof. Dr Janssen denies the validity of the 2011 Will and denies that the instrument was not revoked.[58] Among other matters, the respondent pleads that:
(a)no original will was located prior to the grant of the letters of administration in December 2019, despite searches and enquiries including with Durand Gangemi;[59]
(b)subsequently, Durand Gangemi provided the respondent with 'an alleged electronic copy' of the 2008 Will;[60]
(c)further enquiries by the solicitors for the executor under the 2008 Will resulted in 'a further document now being found and produced' by Durand Gangemi and 'alleged to be a copy of an electronic version' of the 2011 Will;[61] and
(d)if an original of the 2011 Will was in existence at the time of the deceased's death (which the respondent denies) the original of the 2011 Will had been in the possession of the deceased after it was executed (a matter which the appellants admit).[62]
[58] Defence and Counterclaim [2] and [4], BAB 16.
[59] Defence and Counterclaim [4.1], BAB 16.
[60] Defence and Counterclaim [4.2], BAB 16.
[61] Defence and Counterclaim [4.4], BAB 17.
[62] Defence and Counterclaim [4.6], BAB 17; and Reply and Defence to Counterclaim [7], BAB 21.
The respondent goes on to plead that the execution of the Slovenian power of attorney (to effect a gift of property to Ms Logar) is contrary to the testamentary intentions of the deceased as alleged by the appellants.[63] The respondent pleads (and the appellants admit) that the deceased had not had contact with his relatives in Australia 'for some time before his passing'.[64] It is further alleged that the appellants only became aware of the deceased's death more than three years after his passing.[65]
[63] Defence and Counterclaim [4.8], BAB 18.
[64] Defence and Counterclaim [4.9], BAB 18; and Reply and Defence to Counterclaim [9], BAB 21.
[65] Defence and Counterclaim [4.10], BAB 18.
The respondent ultimately pleads that the 2011 Will is presumed to have been destroyed by the deceased.[66] The respondent seeks an order, by his counterclaim, that the Letters of Administration granted to the respondent be 'declared valid and the operative testamentary instrument'.[67]
[66] Defence and Counterclaim [5], BAB 18.
[67] Defence and Counterclaim [9], BAB 19.
The factual compass of the probate action is relatively narrow. The appellants submit that the only issue to be determined at the trial of this action would be whether the appellants have displaced the presumption of revocation in relation to the lost 2011 Will.
In this regard, it is well established that a will may be revoked by the testator destroying it with an intention to revoke it. Further, there is a long established presumption that a will which is shown to have been in the possession of the testator, but which cannot be found after his death, has been destroyed by the testator with the intention of revoking it. The burden of proving that the will was not destroyed with the intention of revocation is upon the party propounding its contents. These principles were the subject of detailed analysis by this court in Larussa v Anna Carr as administratrix of the estate of the Late Giuseppe Larussa.[68]
[68] Larussa v Anna Carr as administratrix of the estate of the Late Giuseppe Larussa [2018] WASCA 127 [61] and [114] ‑ [118] (Murphy, Beech JJA and Allanson J). In those passages, the court analysed the origins of these principles, including the statements made by Lord Wensleydale in Welch v Phillips (1836) 1 Moo PCC 299, 302 and the treatment of those statements in the decision of the High Court in McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434.
Summons
Background to the filing of the application
It is apparent from the above review of the pleadings that the evidence of Ms Gangemi is likely to be relevant to the matters in issue in the probate action.
Quite properly, Ms Gangemi has made clear to the solicitors for both sets of parties that she wishes to provide assistance in this matter.[69] Given her position as the solicitor for the deceased, Ms Gangemi has recognised that she is constrained in providing information to persons other than the personal representative of the deceased, in light of her professional obligations.[70]
[69] Email from Ms Gangemi to Prof. Dr Janssen sent on 26 May 2022 and email from Ms Gangemi to Robertson Hayles sent on 28 July 2022, GAB 103 ‑ 104.
[70] GAB 103 ‑ 104.
At least initially, in May 2021, the communications between Prof. Dr Janssen and the solicitors for the appellants, regarding the evidence of Ms Gangemi, appear to have been cordial. The communications include the initial letter from Robertson Hayles to the court dated 20 May 2021 in which that firm informed the court of the existence of the 2011 Will.[71] That letter was copied to Prof. Dr Janssen. The letter included references to statements attributed to Ms Gangemi as to the deceased's testamentary intentions.[72]
[71] Letter from Robertson Hayles to the Probate Division of the Supreme Court of Western Australia dated 20 May 2021, GAB 94.
[72] GAB 95B ‑ C.
Once proceedings were commenced by the appellants, the previous cordial relationship deteriorated. Prof. Dr Janssen appears to have become concerned, following a conversation with a solicitor from Robertson Hayles after a court hearing, that Ms Gangemi had verbally communicated with that firm without his consent.[73] There is a dispute as to whether Prof. Dr Janssen correctly heard the statements of that solicitor.[74]
[73] Email from Prof. Dr Janssen to Robertson Hayles sent on 26 May 2022, GAB 101.
[74] Email from Robertson Hayles to Prof. Dr Janssen sent on 27 May 2022, GAB 105.
Whether that was so, or not, may have been handled in a number of ways by a solicitor acting for the appointed administrator of this estate. As it happens, Prof. Dr Janssen, acting on his own behalf, chose to adopt an adversarial stance in response, in which he communicated to Ms Gangemi (and to Robertson Hayles) using inflammatory language. While it may have been sufficient to remind Ms Gangemi of her professional duties, the correspondence from Prof. Dr Janssen travels well beyond this.
The correspondence from the respondent includes assertions that Ms Gangemi may have violated her duties and the solicitor‑client relationship,[75] that he would hold Ms Gangemi liable in negligence for the costs of any legal actions,[76] he reserved all rights of the estate and on his part to claim any of these costs against her as damages,[77] and he made a suggestion he would (in apparent discharge of his duty as the administrator) refer the matter to the Legal Practice Board.[78]
[75] Email from Prof. Dr Janssen to Robertson Hayles sent on 26 May 2022, GAB 101D.
[76] Email from Prof. Dr Janssen to Ms Gangemi sent on 26 May 2022, GAB 102E.
[77] Email from Prof. Dr Janssen to Ms Gangemi sent on 26 May 2022, GAB 102E; and email from Prof. Dr Janssen to Ms Gangemi sent on 16 June 2022, GAB 111E.
[78] Email from Prof. Dr Janssen to Robertson Hayles sent on 30 May 2022, GAB 108C.
Having regard to the duties of Prof. Dr Janssen as the administrator appointed by this court, in the context of a modest estate, in which a dispute had arisen as to the identity of the proper personal representative of the estate, these communications are more than regrettable and should not have been sent. A constructive approach by a solicitor acting for the administrator of the estate is more likely to have produced a swifter, less costly, outcome.
The course of the communications led to an almost inevitable result, whereby the respective solicitors for the apparently interested parties in the estate are now engaged in adversarial litigation over this estate. As Ms Gangemi pointed out in her final response to Prof. Dr Janssen, (correctly in my respectful view):
None of this is going to assist in determining what Mr Hudina's testamentary wishes actually were.[79]
The application
[79] Email from Ms Gangemi to Prof. Dr Janssen sent on 17 June 2022, GAB 113C.
Soon after the respondent filed his Reply to the Defence to Counterclaim in late May 2022, and given the impasse which had been reached as to the process of eliciting Ms Gangemi's evidence, the appellants filed the Summons, seeking orders for Ms Gangemi to be examined.
The orders sought were as follows:
1.Arcangela Maria Gangemi attend in court for examination about Ivan Hudina's interactions with her and Durand Gangemi Barristers & Solicitors relating to Mr Hudina's testamentary intentions.
2.Examination in chief of Ms Gangemi be conducted by affidavit.
3.The plaintiff file and serve an affidavit of Ms Gangemi's evidence in chief no later than 14 days before the day of the examination.[80]
[80] BAB 24.
The orders were primarily sought pursuant to O 73 r 20(1) RSC, with orders 2 and 3 also sought pursuant to O 4A r 2 RSC, O 36 r 2 RSC, and in the court's inherent jurisdiction.
Order 73 RSC is headed 'Probate Proceedings'. The order applies to probate causes and matters.[81] Order 73 r 20(1) RSC provides:
20.Orders etc. to bring in will etc.
(1)An application for an order requiring a person to bring into the Registry, or otherwise as the Court may direct, a will or other testamentary paper or to attend in court for examination may be made to a judge by summons which must be served on the person against whom the order is sought.
[81] RSC, O 73 r 1(1).
The Summons was supported by an affidavit of Eric Eng Wei Tan sworn on 15 June 2022 (Tan Affidavit).[82] In the Tan Affidavit, Mr Tan deposed to the substance of a telephone conversation he had with Ms Gangemi, to the following effect:[83]
(a)She had been Mr Hudina's solicitor and that of his late wife for some years prior to their respective deaths;
(b)She was the lawyer who took instructions from Mr Hudina in relation to the Will and drafted the Will;
(c)She has important and crucial information in relation to Mr Hudina that is highly relevant to the status of the Will, but does not wish to breach solicitor-client privilege by providing information to anyone other than Mr Hudina's legal personal representative without a specific court order to do so; and
(d)She wishes to provide her information to the plaintiffs or the Court pursuant to a court order instead of providing the information to the current administrator of Mr Hudina's estate because she does not trust the administrator due to her dealings with him and the fact that he became administrator at least partly in reliance on what she considers to be a misunderstanding or a misrepresentation of her comments about the status of Mr Hudina's testamentary documents.
[82] GAB 1.
[83] Tan Affidavit [5], GAB 2.
The Summons was the subject of multiple directions hearings, on 16 June 2022, 28 July 2022, 11 August 2022, and then 18 August 2022, and was ultimately adjourned to a special appointment which was held on 16 January 2023.[84]
[84] ts 1 ‑ 33.
During the course of these hearings, as earlier noted, an order was made requiring the respondent to provide discovery of all documents in the possession of Durand Gangemi relating to the deceased's testamentary intentions.[85] That order was satisfied by an affidavit of discovery sworn by the respondent on 14 July 2022 (Janssen Discovery Affidavit), which is some 192 pages in length.[86] The Janssen Discovery Affidavit attached eight categories of documents received by the respondent on 8 July 2022 from Durand Gangemi.[87]
[85] Order made on 16 June 2022, BAB 28.
[86] GAB 4 ‑ 81.
[87] Janssen Discovery Affidavit [4], GAB 6.
Primary Reasons
The Primary Reasons are brief. After outlining the pleaded issues, the orders sought in the Summons and the terms of O 73 r 20(1) RSC, the Master addressed the competing positions of the parties and then dealt with the mediation order sought by the appellants.
The substantive portions of the Primary Reasons are as follows:
[5]The defendant opposed the plaintiffs' application on the basis that the rule was not applicable. The defendant pointed out a copy of the will was available. It formed part of the defendant's records and had been produced pursuant to an order for discovery. The issue between the parties was whether the will had been revoked ‑ or perhaps more correctly, whether the plaintiffs could overcome the presumption of revocation of the will. The defendant maintained that not only was the examination of Ms Gangemi not authorised by the rule, but that it would serve no purpose in the context of the issues between the parties.
[6]Faced with the defendant's objections, counsel for the plaintiffs changed tack. He sought an order for mediation with an order that Ms Gangemi be permitted to attend the mediation and take such part in that mediation as the mediator thought fit. The defendant opposed that order. He submitted that having Ms Gangemi at the mediation would serve no useful purpose and would complicate matters in an inappropriate way. After hearing submissions from counsel for the plaintiffs, I indicated that I would not make an order permitting Ms Gangemi to attend the mediation. I said I would publish reasons for my decision. These are those reasons.
[7]As I have indicated, the issue between the parties is whether or not this will has been revoked. It is difficult to know what Ms Gangemi might be able to say about that issue. She may be able to give some evidence as to the capacity of the deceased at the time he signed the will, but as I understand the plaintiffs' position, that is not really what is at issue between the parties. But for the sake of these reasons, I am prepared to assume that Ms Gangemi can say something which is of relevance on this issue.
[8]A mediation as conducted by registrars of this court is an attempt to settle a matter without the need for a trial. Although the descriptor 'mediation' is used, the process could perhaps be better described as 'aggravated negotiation'. The aim is not necessarily to bring the parties together. The aim is to compromise the action, probably to the mutual dissatisfaction of those involved. The process necessarily involves a consideration of the evidence and the respective arguments of both sides; but it is not a trial or anything like it. To involve third parties who may eventually be called to give evidence at the trial is not part of the process. Apart from anything else, what was said by the third party would be covered by privilege and that could lead to difficulties when and if the third party gave evidence at the trial.
[9]It is clear that counsel for the plaintiffs was well motivated in his efforts to have Ms Gangemi attend the mediation. His aim was clearly to see what she had to say - whether it favoured the plaintiffs' position or not - with a view to reaching a compromise. During the course of his submissions, he quite rightly emphasised both case management principles and proportionality. But the orders he sought were simply not within the scope of the mediation procedure and I was not satisfied the orders he sought were appropriate. Accordingly, I dismissed the application. The costs of the application including reserved costs will be costs in the cause.
There is some disagreement between the parties as to whether the order for dismissal represented a dismissal of the Summons in its original form. That is the position which seems to be adopted by the respondent.[88]
[88] Respondent's Submissions [4], WAB 38.
In contrast, the appellants contend that the Master (wrongly) regarded the orders pursuant to O 73 r 20(1) as having been abandoned by the appellants, and his order represents a dismissal of an alternative order sought by the appellants' counsel during the hearing to require Ms Gangemi to attend the mediation.[89]
[89] Appellants' Submissions [21] - [24], WAB 14.
Grounds of appeal
The grounds of appeal are as follows:
1.The learned Master erred in mixed fact and law in that he believed the appellants had abandoned their application for an order against Arcangela Maria Gangemi (Gangemi) pursuant to O 73 r 20(1) of the Rules of the Supreme Court 1971 (WA) (Application) so that it no longer required determination by the Master, when in fact they had not abandoned the Application and therefore the Master was required to determine it on its merits.
2.The learned Master erred in law by denying the appellants procedural fairness in failing to determine the Application on its merits.
PARTICULARS
(a)The Master did not determine the Application on its merits.
(b)The Master determined whether Gangemi should attend a mediation conference with the parties, which not in issue at the special appointment on 16 January 2023.
(c)The Master purported to dismiss the Application at Reasons [9], but did so with the apparent intention of dismissing an application for Gangemi to attend a mediation conference with the parties, despite such an application not having been in issue at the special appointment on 16 January 2023.
(d)The Master did not inform the parties that he did not propose to determine the Application on its merits.
(e)The Master gave no, or no adequate, reasons for failing to determine the Application, other than mentioning at Reasons [6] that the Master believed the appellants to have 'changed tack'.
3. To the extent the Master's comments at the directions hearing on 11 August 2022 (TS 19) disclose his reasons for his decision, the Master erred in law in taking into account the possibility that the respondent would appeal from an order granting the Application, which was an irrelevant consideration.
The respondent filed an application within the appeal, concerning the terms and scope of the submissions filed by the respondent (as certain paragraphs of the submissions were disallowed by the Registrar).[90] It was not necessary to address the application at the appeal,[91] and it should formally be dismissed as part of the final orders of this court.
[90] Application filed by the respondent dated 23 June 2023.
[91] Appeal ts 47.
For their part, the appellants foreshadowed an application to challenge a portion of the respondent's submissions but, similarly, it was not necessary to deal with that issue at the appeal.[92]
[92] Appeal ts 5, 47.
Disposition - ground 1 (abandonment of application)
The Master did not expressly state that he considered the appellants had abandoned the application pursuant to O 73 r 20(1) RSC, although that may be the import of his observation that 'counsel for the plaintiffs changed tack' (at [6]).
Is there some indication in the proceedings below that the primary relief was abandoned by the appellants? Having reviewed the procedural pathway of the Summons, which stretched over the course of several directions hearings, and which may have unduly complicated the matter, I cannot see any express indication to this effect.
It should be observed that, at a certain point, the appellants also prepared a set of alternative orders, which included an order that Ms Gangemi attend at the mediation. These alternative orders drew attention away from the initial relief sought requiring Ms Gangemi to give evidence.[93]
[93] Appellants' minute of proposed orders for directions hearing on 18 August 2022 dated 17 August 2022, BAB 52.
This set of alternative orders was the subject of an interchange with the Master at the directions hearing on 18 August 2022 (being the hearing prior to the special appointment at which the matters was determined), as follows:
THE MASTER: Yes. Dr Janssen. Yes. All right, Mr London. I've seen your further submissions. I take it that no agreement has been possible and you still seek the orders for the examination of Ms Gangemi.
LONDON, MR: Sort of, Master. Have you had an opportunity to consider the minute of proposed orders that was also filed last night?
THE MASTER: Yes. I glanced - - -
LONDON, MR: As set out in those minutes of proposed orders, I have in fact three proposals, three alternative proposals for how this matter could proceed at this point, and my client's position now is that it would be preferable, rather than proceeding straight to the hearing of their application, the interlocutory application for evidence from Ms Gangemi, it would be advantageous for the parties to attend a mediation conference at which Ms Gangemi was granted permission to attend. And the reason that that perhaps somewhat unusual proposal is made is because Ms Gangemi has advised that she would be willing to discuss her confidential or otherwise evidence with the parties within that confidential confines of the mediation conference, and I see this as being a way that the parties can finally get down to discussing the merits of the application and seeing if the matter can be resolved. And of course, it would be up to the discretion of the mediation registrar to, once Ms Gangemi has fulfilled her purpose of being there, she can of course be asked to leave and then the parties can negotiate confidentially, as they ordinarily would.[94] (emphasis added)
[94] ts 23.
It may be said, having regard to the emphasised comments in the above transcript, that counsel for the appellants was somewhat equivocal as to whether the primary relief was being maintained. However, the position was clarified by counsel during the special appointment on 16 January 2023:
THE MASTER: So your primary position is that you would like affidavit evidence of Ms Gangemi filed?
LONDON, MR: Yes. The order is only written on the ‑ as in the rules rather, order 73 rule 20, is set out on the basis that it's for oral evidence, but of course, the court's case management powers enable that to be dealt with by an affidavit, at least initially, and as explained in my submissions, I believe that would be the most efficient way of going about it and have any cross-examination deferred until trial because determining the questions of credibility can be deferred but getting that critical ‑ that primary evidence-in-chief from Ms Gangemi would enable the parties to move on and be able to ‑ the plaintiffs could actually for the first time, properly assess the merit of their claim without having ‑ without being in the invidious position of having to decide to go to trial and spend their ‑ very large amounts involved in doing so, without - - - [95] (emphasis added)
[95] ts 29.
The balance of the hearing on 16 January 2023 was focused on the making of an order pursuant to O 73 r 20(1) RSC.[96] Counsel for the respondent, Prof. Dr Janssen, was not called upon by the Master to orally respond to the Summons at the hearing.[97]
[96] ts 29 - 33.
[97] Both parties had filed written submissions ahead of the special appointment, including supplementary written submissions: BAB 36 - 71.
The Master concluded the hearing as follows:
THE MASTER: Well, I've looked at this file carefully and not without some hesitation, and come to the conclusion that it would be inappropriate to make the order, but it is slightly an unusual case and I think it warrants written reasons for the decision because it is a feature of ‑ it might be an important aspect of probate practice…[98]
[98] ts 33.
It is apparent from these concluding observations that the Master intended to dismiss the Summons insofar as relief pursuant to O 73 r 20(1) RSC was being sought. Nonetheless, the Primary Reasons do not expose a pathway of reasoning by which this relief was dismissed. The Primary Reasons are simply silent in this regard. Ultimately, within the Primary Reasons, the Master focused on, and appears to have dismissed, the alternative relief sought to require Ms Gangemi to attend the mediation.
Prof. Dr Janssen, in his written submissions on appeal, contended that the appellants had abandoned the initial relief sought pursuant to O 73 r 20(1) RSC.[99] His submissions are difficult to follow in this regard, but it would appear Prof. Dr Janssen contends that the abandonment arises from two matters. First, from the appellants' application for alternative orders. Second, from the outcome at the directions hearing on 18 August 2022, by which the Master ordered the matter be adjourned to a special appointment, described by the respondent as the 'First Alternative Orders'.
[99] Respondent's Answer [19], WAB 41.
The respondent's position in this regard is nonsensical. Neither of these matters represents an abandonment of the initial relief which was sought. The orders in question were described as 'alternative orders' - they were not sought in substitution. Moreover, the 'First Alternative Orders' merely involved the matter being adjourned to a later, substantive hearing - that is not an abandonment, indeed it is quite to the contrary. In any event, as noted above, counsel for the appellants pressed the initial relief at the special appointment in January 2023.
In the course of an interchange with this court during this appeal, Prof. Dr Janssen appeared to concede (and properly so, in my view) that the Master did not consider and determine the appellants' application pursuant to O 73 r 20(1) RSC and that the appellants had not abandoned the initial relief.[100] Prof. Dr Janssen later corrected that position, and reverted to the contentions as expressed in his submissions.[101]
[100] Appeal ts 43 - 44.
[101] Appeal ts 47.
I cannot discern from the transcript any express indication that the primary relief sought by the appellants pursuant to O 73 r 20(1) RSC was abandoned by counsel for the appellants during the course of the various hearings before the Master.
The application pursuant to O 73 r 20(1) RSC not having been abandoned, it was necessary for the Master to provide reasons to explain the basis on which he declined to make any order pursuant to that provision. As the Primary Reasons failed to address the issue, an error of law has been established and ground 1 should be allowed.
Disposition - ground 2 (procedural fairness)
The second ground of appeal largely follows from the first ground.
The Learned Master failed to determine the Summons on its merits and gave no reasons for, in effect, dismissing the appellants' primary application for orders pursuant to O 73 r 20(1) RSC.
As this court has recently observed, it is well established that, if a judicial officer proposes to decide a case on a basis that is materially different from the basis on which the parties conducted the hearing, the judicial officer must inform the parties of the proposed basis so that the parties have an opportunity to respond to the judicial officer's adoption of the proposed basis and any new or changed issues that may arise. Further, if the judicial officer fails so to inform the parties there will ordinarily be a denial of procedural fairness that will result in an order for a new hearing if a properly conducted hearing might possibly have produced a different result.[102]
[102] Legal Profession Complaints Committee v Lourey [2022] WASCA 114 [200] (Buss P, Mitchell and Vaughan JJA) and the authorities cited therein.
An error of law has been established, in my view, and I would uphold this ground largely for the same reasons as ground 1.
Disposition - ground 3 (irrelevant consideration)
In light of my conclusions in relation to grounds 1 and 2, which are sufficient to dispose of the appeal in favour of the appellants, it is not strictly necessary to address the third ground. I will deal with the ground in brief terms only.
The appellants contend that the Master erred in law by having regard to an irrelevant consideration, namely the possibility of an appeal being filed by the respondent in the event the Master made the order.
The comments in question were made by the Master at a directions hearing on 11 August 2022, during an interchange with counsel as to the case management implications of the appellants' litigation strategy. The Master was, quite properly with respect, exploring a range of case management issues with counsel for the appellants.
The appellants draw attention to the following comments:
THE MASTER: Well, who are you going to call apart from Ms Gangemi? Look, what I think should happen, Mr London, is that I should adjourn this matter for a week. You consider the possibility of a trial. If you conclude - and perhaps discuss it with Dr Janssen. If you conclude that the best course is still this application to examine Ms Gangemi, well, I will deal with that on the merits. But I think you ought to give serious consideration to just having this matter listed. If it's a one-day trial, I'm not sure that I can do it, but somebody will be able to do it before the end of the year; otherwise, you run the risk of having this cross‑examination - or you run the risk, even if you get the order, of an appeal against the order, and the matter just goes on and on. I think it would better to have the trial and get it over and done with. Now, you can think about that and discuss it. I will adjourn it for a week. If you're still of the view that you want the orders sought in the interlocutory process, I will deal with that on its merits.
LONDON, MR: Master, if there's one point that I could raise before we move on, which is that you've referred yourself to the issue of the question of whether Ms Gangemi's evidence would be privileged - now, the way I see it, if the court makes a specific or directing her to give evidence, then that gets around the privilege issue, where - - -
THE MASTER: Well, it only gets around the privilege issue to the extent that it's the order made in the context of the hearing. It's an interlocutory order. And you run the risk of an appeal. You just run the risk of an appeal. It's clearly - and that - those interlocutory appeals are a curse because it takes nine months to get to the Court of Appeal and probably three months for a decision. So you're 12 months down the track; you've incurred a whole heap of costs. Fracturing the process in the way that you propose is fraught with difficulty, in my view. Now, I can be talked out of that, because I understand what you're driving at. But based upon the submissions put by Dr Janssen, this point is highly arguable. That's all I will say at the moment, but it's highly arguable. So I will stick - - -
LONDON, MR: Master, would - - -
THE MASTER: Look, I don't want to debate it any further. I will stick to my original plan. You can have a week to think about it and just turn your mind to the question of having a trial. If you want me to deal with the interlocutory process on its merits next Thursday, I will.[103] (emphasis added)
[103] ts 19 ‑ 20.
The above observations were made by the Master at the third directions hearing in the matter (held on 11 August 2022). There was a further directions hearing held on 18 August 2022, followed by the substantive special appointment in January 2023. The appellants do not point to any similar comments made by the Master during the later hearings.
There is no force in the appellants' contention. In my view, there was no indication during the hearing on 16 January 2023, nor any indication in the Primary Reasons, that the Master took the prospect of an appeal into account in dismissing the relief which was sought by the appellants.
Observations such as those made by the Master are not uncommonly made by a case manager in this court. Discussion of such matters with counsel can often be helpful to expose the case management implications of a particular pathway and provide counsel with the benefit of the court's experience. In the present case, they were observations which did not form part of the reasoning process of the Master.
I would not uphold this ground.
Leave to appeal
The appellants require leave to appeal as the decision of the Master is interlocutory in character.[104] In general terms, leave should not be granted unless the decision below is plainly wrong or is attended by sufficient doubt to justify the grant of leave and a substantial injustice would be done if it remains undisturbed.[105] Ultimately, leave may be granted whenever the interests of justice require it.[106]
[104] Supreme Court Act 1935 (WA),s 60(1)(f).
[105] Wilson v Metaxas [1989] WAR 285, 294; Waller v Waller [2009] WASCA 61 [8] ‑ [10], [116], [120] ‑ [121].
[106] SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138 [13].
As this court has often emphasised, leave to appeal an interlocutory decision of a procedural character will not readily be granted.[107]
[107] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [117]; Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [2023] WASCA 108 [107] ‑ [111]; North West Pilots Pty Ltd v Daniel [2023] WASCA 122.
In my view, the failure of the Master to substantively address and determine the appellants' application for orders pursuant to O 73 r 20(1) RSC is a compelling consideration as to whether leave should be granted. Whether or not the orders sought by the appellants could have been made by the Master (a matter to which I will turn next), the decision to refrain from determining the application was plainly wrong and a substantial injustice would be done if the decision of the Master remained undisturbed. The substantial injustice is that the decision was one in which the application advanced by the appellants was simply not determined on the merits.
Should the matter be remitted?
On the basis that grounds 1 and 2 are upheld, and leave to appeal is granted, it is necessary for the court to consider whether the orders sought in the Summons should be considered afresh by this court, or the matter remitted to the General Division.
In my view, it is appropriate for this court to proceed to consider the Summons afresh. I say this for four reasons.
First, all the necessary evidentiary materials to determine the application are before this court. Neither counsel suggested that additional evidentiary material would need to be adduced if the matter was remitted for re‑determination. Second, the parties have had a full opportunity to present argument as to whether O 73 r 20(1) RSC, or the other identified powers of the court, support the orders. Third, this is an appeal from an interlocutory order and it is in the interests of the administration of justice that any further delays in this matter be minimised. Further delays may well result if the Summons was to be remitted to a new judicial officer for fresh determination. Fourth, I did not understand either counsel to oppose this course.
I propose to address the Summons by first examining the scope of the primary power relied upon by the appellants, being O 73 r 20(1) RSC, and then considering whether there exist alternative or additional powers which might otherwise support the relief. Next, I will address whether the materials provide a proper basis for the exercise of these powers in favour of the relief sought by the appellants.
Scope of O 73 r 20(1) RSC
I have extracted the terms of this rule earlier in these reasons. The rule forms part of O 73 RSC, which applies to probate causes and matters. This rule has not been the subject of authoritative examination in this State.
The rules of the court are subsidiary legislation, made pursuant to the power in s 167 of the Supreme Court Act 1935 (WA). The proper construction of any rule of the court is to be assessed with a focus on the text of the provision, having regard to its context and purpose. As is the case with statutory construction generally, the text is the surest guide to the underlying intention.[108]
[108] Webb v Tang [2023] WASCA 119 [73] (Buss P and Vaughan JA) and the authorities collected therein in relation to the principles of statutory interpretation.
The relevant context must be considered, which will include the history of the provision and the mischief to which it is directed.[109] Further, the purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions.[110] The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose.[111]
The text of the provision
[109] Webb v Tang [74].
[110] Webb v Tang [75].
[111] Webb v Tang [75].
The text of O 73 r 20(1) RSC is directed to the bringing into the court of a testamentary instrument. The rule also includes the phrase: 'or to attend in court for examination'. The appellants contend this phrase is largely unconstrained, and certainly not limited by the preceding text.[112] The respondent posits a narrower construction.[113]
[112] Appellants' submissions [60] ‑ [64]; WAB 25 - 26.
[113] Respondent's submissions [56] ‑ [57], [79] ‑ [86]; WAB 47 ‑ 48, 52 ‑ 53.
An approach to the rule by which the power to require a person to attend for examination is unconstrained, or at large, would seem to be an unlikely construction of this rule. It is unlikely because it would provide the court with no touchstone upon which to assess the exercise of its discretion. It would also create an express and wide‑ranging power within O 73 RSC, not elsewhere found in the rules of the court.
The more likely intended scope of the rule, having regard to its text, is that the power to require a person to attend for examination is ancillary or subsidiary to the primary purpose of the rule, namely the power to direct that a person bring into court a testamentary instrument. That is, a more reasonable construction of the provision is that it permits examination of a witness in relation to the subject matter of the rule itself, which is the existence and whereabouts of a testamentary instrument, and matters ancillary thereto.
The origins of the rule
I turn next to the history and origins of the rule. When the court's rules were drafted and introduced in 1971, the associated commentary included the following statement regarding O 73 RSC:
The contentious probate jurisdiction of the Supreme Court is similar to the jurisdiction exercised by the Courts of Probate in England at the commenced of the Supreme Court Ordinance, 1861. Apart from ta few isolated rules, the former Rules of Court were silent on the subject of procedure in probate causes, and it was necessary to resort to the Probate Rules (Contentious Business) made under the Imperial Acts known as the Court of Probate Acts, 1857, and 1858. The Contentious Business Rules were wholly replaced by Order 76 of the English Revision of 1965, and, in in general, the present procedure in England has been followed in drafting new Order 73. Practitioners who engage in this class of litigation will now be guided by a concise set of special rules of procedure.[114]
[114] Rules of the Supreme Court 1971 (WA) as at 1971, with Introduction and Index, xxv.
The reference to the English Revision of 1965 is a reference to the Rules of the Supreme Court (Revision) 1965 (UK) (the UK Rules), which came into effect in 1966. The equivalent provision to O 73 r 20 RSC in the UK Rules was O 76 r 19, which was in the following terms:[115]
19Application for order to bring in will, etc.
(1)An application in a probate action for an order under section 26 of the Court of Probate Act 1857 requiring a person to bring into the probate registry a will or other testamentary paper or to attend in court for examination may be made to a judge by summons, and the summons must be served on the person against whom the order is required.
(2)An application in a probate action for the issue by a registrar of a subpoena under section 23 of the Court of Probate Act 1858 requiring a person to bring into the probate registry a will or other testamentary paper must be supported by an affidavit setting out the grounds of the application.
(3)Any person against whom a subpoena is issued under the said section 23 and who denies that the will or other testamentary paper referred to in the subpoena is in his possession or under his control may file an affidavit to that effect.
[115] As discussed in Williams and Mortimer on Executors, Administrators and Probate (15th ed, 1970), 397 ‑ 398.
The reference in the above rule to the 1857 and 1858 statutes is a reference to the Court of Probate Act 1857 (UK) (20 & 21 Vict c.77) (Court of Probate Act 1857) and the Court of Probate Act 1858 (UK) (21 & 22 Vict c.95) (Court of Probate Act 1858).[116]
[116] It is unnecessary for present purposes to examine s 23 of the Court of Probate Act 1858, to which reference is made in r 19(2) and r 19(3) of the UK Rules. Section 23 permitted the registrar to issue a subpoena to bring in the script, and was the more usual mode of procedure where the testamentary document was known to be in the possession of the person to whom the subpoena was directed: Tristram and Coote's Probate Practice (25th ed, 1978), 606. Section 23 was also available whether any suit or other proceeding was pending in the court.
The Court of Probate Act 1857 transferred responsibility for the granting of probate, and letters of administration, from the ecclesiastical courts of England and Wales to the newly established civil court known as the Court of Probate.
Pursuant to s 26 of the Court of Probate Act 1857, a judge was empowered to direct any person who appeared to have knowledge of any script to attend for examination in open court or upon interrogatories respecting the same, and such person could be ordered to bring in such script. The full terms of the provisions were as follows:
XXVI.The Court of Probate may, on motion or petition, or otherwise, in a summary way, whether any suit or other proceeding shall or shall not be pending in the Court with respect to any probate or administration order any person to produce and bring into the principal or any district registry, or otherwise as the Court may direct, any paper or writing being or purporting to be testamentary, which may be shown to be in the possession or under the control of such person; and if it be not shown that any such paper or writing is in the possession or under the control of such person, but it shall appear that there are reasonable grounds for believing that he has the knowledge of any such paper or writing, the Court may direct such person to attend for the purpose of being examined in open Court, or upon interrogatories respecting the same, and such person shall be bound to answer such questions or interrogatories, and, if so ordered, to produce and bring in such paper or writing, and shall be subject to the like process of contempt in case of default in not attending or in not answering such questions or interrogatories, or not bringing in such paper or writing, as he would have been subject to in case he had been a party to a suit in the Court and had made such default; and the costs of any such motion, petition, or other proceeding shall be in the discretion of the Court.
The foregoing provision may be compared with s 24 of the Court of Probate Act 1857, which was broader in terms, and which provided as follows:
XXIV.The Court of Probate may require the attendance of any party in person, or of any person whom it may think fit to examine or cause to be examined in any suit or other proceeding in respect of matters or causes testamentary, and may examine or cause to be examined upon oath or affirmation, as the case may require, parties and witnesses by word of mouth, and may, either before or after or with or without such examination, cause them or any of them to be examined on interrogatories, or receive their or any of their affidavits or solemn affirmations, as the case may be; and the Court may by writ require such attendance, and order to be produced before itself or otherwise any deeds, evidences, or writings, in the same form, or nearly as may be, as that in which a writ of subpoena ad testificandum, or of subpoena duces tecum, is now issued by any of Her Majesty's superior Courts of Law at Westminster; and every person disobeying any such writ shall be considered as in contempt of the Court, and also be liable to forfeit a sum not exceeding One Hundred Pounds.
What is evident from the foregoing is that the progenitor of the Western Australian rule is s 26 of the Court of Probate Act 1857, rather than s 24 thereof. Section 24 does not appear to have an equivalent provision in the UK Rules, and is not replicated in any respect in the Western Australian rules.
It is instructive to compare the Western Australian position with the approach adopted in South Australia, as a different course was adopted in the latter jurisdiction. In contrast to the position in Western Australia, the South Australian legislation, from the outset, directly adopted the provisions contained in the Court of Probate Act 1857 (and did not later adopt the modified approach evident in the UK Rules). This was initially achieved through the enactment of the Testamentary Causes Act 1867 (SA), and later through its successor, the Administration and Probate Act 1919 (SA). Specifically, s 24 of the Court of Probate Act 1857 was replicated in substance in both statutes.[117]
[117] Testamentary Causes Act 1867 (SA), s 16; Administration and Probate Act 1919 (SA), s 24.
Further, the Supreme Court Act 1935 (SA) expressly indicates that the probate jurisdiction vested in the Supreme Court of South Australia was the jurisdiction exercisable by the Court of Probate established in England under the Court of Probate Act 1857.[118]
[118] In the Estate of Koutsouliotis [2011] SASC 196 [5] - [6] (Gray J).
The South Australian provisions were the subject of detailed analysis by Legoe J in In the Estate of Goodfellow.[119] In that case, the witness had produced the copies of the wills in her possession, and stated on affidavit that the original of one of the wills could be located at her solicitors' office. The witness further deposed that she knew of no other wills or testamentary papers executed by the deceased.[120] The applicant nonetheless pressed his summons to have the witness examined in respect of the 'testamentary cause'.[121] The summons was brought pursuant to s 24 of the Administration and Probate Act 1919 (SA), and also pursuant to s 25 thereof. This latter provision is similar in terms to O 73 r 20(1) RSC.
[119] In the Estate of Goodfellow (1987) 47 SASR 367 (Legoe J).
[120] In the Estate of Goodfellow (371).
[121] In the Estate of Goodfellow (368).
Section 24 of the Administration and Probate Act 1919 (SA) provides as follows:
(1)The Court may ‑
(a)require the attendance of any person whom it thinks fit to examine, or cause to be examined, in any action or other proceeding in respect of matters or causes testamentary, whether an action is depending or not;
(b)examine or cause to be examined, upon oath or affirmation, as the case may require, parties and witnesses by word of mouth; and
(c)either before or after, or with or without such examination, cause them, or any of them, to be examined on interrogatories, or receive their or any of their affidavits or solemn affirmations, as the case may be.
(2)The Court may, by writ, require such attendance, and order to be produced before itself, otherwise, any deeds, evidences, or writings, in the same form, as nearly as may be, as that in which a writ of subpoena ad testificandum, or of subpoena duces tecum, is now issued by the Court.
Legoe J held that s 24 of the Administration and Probate Act 1919 (SA) conferred jurisdiction on the Supreme Court of South Australia to exercise its discretion to order discovery in all its forms - documentary, oral examination and interrogatories.[122] His Honour further held that the provision applied even though no writ had been issued, as the term 'proceeding' was of wide import and included the entering of a caveat warning and an appearance thereto.[123]
[122] In the Estate of Goodfellow (378).
[123] In the Estate of Goodfellow (380).
On the affidavit material, and even though the testamentary instruments had been produced by the witness already, Legoe J was satisfied the witness should be examined, pursuant to the power in s 24(1)(b) of the statute. As the testamentary instruments had been produced, Legoe J noted that the power in s 25 of the Administration and Probate Act 1919 (SA) was no longer in question.[124]
[124] In the Estate of Goodfellow (380).
The analysis of Legoe J in In the Estate of Goodfellow usefully demonstrates the difference in scope between s 24 of the Court of Probate Act 1957 (and its progeny) and s 26 of that statute (and its progeny).
Conclusion as to the scope of the rule
The historical origins of O 73 r 20(1) RSC, specifically the terms of s 26 of the Court of Probate Act 1857 and then O 76 r 19(1) of the UK Rules, support the construction which emerges in my view from the text of the provision. In contrast to the broader provision in s 24 of the Court of Probate Act 1857, which has been adopted in the South Australian legislation, the present Western Australian rule and its predecessors are directed to the bringing in of scripts, or the ascertaining of their whereabouts, and matters ancillary thereto.
In part, the submission of the appellants as to the broader operation of the Western Australian rule were supported by reference to the authorities dealing with s 150(1) of the Probate and Administration Act 1898 (NSW), including Boyce v Bunce[125] and Re Kouvakas.[126] The submission becomes unpersuasive once it is recognised that the NSW provision is different in terms to O 73 r 20(1) RSC and, in any event, to the extent to which the Supreme Court of New South Wales has, in certain cases, considered or made orders beyond the production of wills and other testamentary instruments, that appears to have been undertaken in the exercise of the court's case management powers.[127]
[125] Boyce v Bunce [2015] NSWSC 1924 (Lindsay J).
[126] Re Kouvakas [2014] NSWSC 786 (Lindsay J).
[127] Boyce v Bunce [150] ‑ [156] (Lindsay J); Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 [88], [98], [106] ‑ [110] (Lindsay J).
The submission advanced by the appellants to the effect that O 73 r 20(1) RSC permits examination of persons generally as to the testamentary intentions of the deceased should therefore be rejected.[128]
Alternative powers
[128] Appellants' submissions [56] ‑ [64]; WAB 24 ‑ 25.
Before addressing the alternative powers identified by the appellants, the application filed by the appellants should be seen in the context of the conventional approach to contemporary civil litigation.
Ordinarily, all of the issues in an action commenced by writ will be determined by a judge at a final trial of the matter to be heard in court (rather than chambers),[129] with all relevant and admissible evidence being received at that trial. Documentary discovery, to the extent required, will be ordered to be provided by the parties to an action as an interlocutory step ahead of trial. Oral discovery prior to a final trial is exceptional in Western Australia.
[129] Order 4 r 1(a) RSC.
The exceptions include the examination of a witness de bene esse pursuant to O 38 r 1(1) RSC. Importantly, a deposition taken pursuant to this rule will be received at trial only with consent, or where the deponent is dead or beyond the jurisdiction of the court, or unable through sickness or other infirmity to attend the trial.[130] That provision has no application in the present case.[131]
[130] Gething M, Curwood M and Joseph R, Civil Procedure: Western Australia (vol 1), [38.1.5].
[131] Order 36 r 7(1) RSC.
In probate actions, a further exception is found in O 73 r 20(1) RSC, which has been analysed above. As explained, this power is far narrower than the appellants contend.
There are two alternative powers identified by the appellants which are said to provide support, or partial support, for the orders sought in the Summons. The appellants make reference to O 4A r 2(1) RSC and O 36 r 2(1) RSC.
The second of these powers can be dealt with readily. Order 36 RSC addresses a number of general matters concerning the reception of evidence. Rule 2 concerns the reception of evidence by affidavit.[132] The rule permits the court to order that evidence at a trial or hearing of an action may be given by affidavit, on appropriate terms. The order can be made at the trial or hearing, or before. The rule does not authorise the court to order a deposition process ahead of the final trial or hearing. This is made quite clear from O 36 r 7 RSC, which reinforces the role of O 38 RSC as the relevant procedure for depositions to be taken prior to a final trial.[133]
[132] Order 36 r 2(1) RSC provides that: 'The Court may, before or at the trial or hearing of an action, order that all or any of the evidence therein shall be given by affidavit if the Court thinks that in the circumstances of the case it is reasonable so to order'.
[133] See O 36 r 7(1) and r 7(2) RSC.
A further exception is found in the case management powers of the court, in O 4A r 5A(1) RSC, to make an interlocutory order or case management direction as that term is defined in O 4A r 2(1) RSC.[134] This power is broad in its terms. Further, O 4A r 4 RSC provides that, if there are inconsistencies between the provisions in O 4A RSC and the other rules of court, the former prevails.
[134] Order 4A r 5A RSC is found in div 2 of the order, which applies to all civil cases, not only cases which are managed in the Commercial and Managed Cases List.
A case management direction that may be made by a judge pursuant to O 4A r 5A(1)(b) RSC extends to 'any procedural direction that in the Court's opinion it is just to make in a case to facilitate the attainment of the objects referred to in Order 1 rule 4B(1)'.[135] The examples of case management directions which may be made under this rule demonstrate the breadth of the power.[136] When read with the definition of 'case management direction' and having regard to the express examples of such directions, together with the supremacy provision in O 4A r 4 RSC, and given the evident importance of the objects in O 1 r 4B(1) RSC, O 4A r 5A(1) RSC should be seen as a facultative provision to be construed beneficially and given the widest interpretation.[137]
[135] Order 4A r 2(1) RSC.
[136] The examples in O 4A r 2(2) RSC include: a direction that the parties comply with a timetable for procedural steps that are needed in the case; a direction to dispense with any interlocutory step; a direction that the parties or their legal practitioners file and exchange memoranda before the hearing of any interlocutory application in order to clarify the matters in issue before the hearing; a direction to limit discovery or direct that discovery be given in stages; directions for the purposes of O 36A r 1 as to expert evidence including directions as to the provision to a party or the Court of a copy of a report, or part of a report, of an expert witness, before the trial; and a direction that any or all of the parties confer on a 'without prejudice' basis for the purpose of identifying, resolving and narrowing the points of difference between them.
[137] Civmec Construction & Engineering Pty Ltd v Mann [No 2] [2023] WASC 99 [45] ‑ [46] (Tottle J).
In a proper case, and where the attainment of the objects referred to in O 1 r 4B(1) RSC would be facilitated, a case management direction may be made which extends to requiring an affidavit to be filed by a witness prior to a final trial, and for cross‑examination to be conducted in relation thereto. Whether the power should be exercised in that manner will depend on the facts of the particular case. Ordinarily, it is to be expected that all oral evidence would be given at the final trial of the action.
Whether any of the alternative powers should be exercised?
I am firmly of the view that the power in O 4A r 5A(1)(b) RSC to make a case management direction should not be made in the present circumstances. There are three compelling reasons for this conclusion.
First, there are case management obstacles in the path of such an order. It is common ground that the estate in dispute is modest in size. Further, all indications are that the final trial of the probate action would require a trial of no more than two days. The evidence of Ms Gangemi would seem to be the most contentious of all the evidence to be adduced at trial. Finally, very few further steps would be required in order to ensure the matter is ready for trial.
In these circumstances, the making of orders which would fragment the proceedings into a mini‑trial in which the evidence of Ms Gangemi is tested, ahead of a final trial, would not appear likely to facilitate the attainment of the objects in O 1 r 4B(1) RSC.
Indeed, in my view, it would be antithetical to those objects, including the efficient disposal of the business of the court, maximising the efficient use of judicial and administrative resources, facilitating the timely disposal of business, and ensuring the procedure and its costs are proportionate to the value, importance and complexity of the subject matter in dispute.
Second, the orders sought by the appellants would at least require Ms Gangemi, perhaps working together with the solicitors for the appellants but certainly not (it would seem) working with the respondent, to prepare an affidavit of her evidence, including in respect of matters which are likely to be the subject of claims for legal professional privilege. The appellants intend that that affidavit be filed and, only thereafter, that claims for privilege could be made by the respondent.
Where the order of a court is confined to requiring a person, including a solicitor, to bring a testamentary instrument into court, or to file an affidavit or give evidence as to matters concerning the due execution of a testamentary instrument, the difficulties arising from privilege claims do not arise. This follows from the rule in Re Fuld,[138] which gives priority to the inquisitorial capacity of the court in seeking the truth as to execution of the testamentary instrument.[139] In those circumstances, the witness to the execution of the will is regarded as a witness of the court.[140] This rule does not extend to an order which would require a solicitor to give evidence as to their interactions with the deceased and as to his or her testamentary intentions generally.
[138] In the Estate ofRe Fuld, deceased; Hartley v Fuld (Attorney General intervening) [1965] P 405, 409 ‑ 411 (Scarman J).
[139] Boyce v Bunce [145] ‑ [149] (Lindsay J).
[140] Hawkins v Clayton (1986) 164 CLR 539, 550 ‑ 551 (Brennan J).
The approach urged on the court by the appellants thus has the real potential to undermine any proper claims for privilege which might be made. The importance of that privilege requires some brief comment.
The privilege which attaches to communications between a client and their legal advisor arises out of a substantive general principle of the common law.
In Glencore International AG v Federal Commissioner of Taxation,[141] the High Court unanimously recently restated with approval several descriptions of legal professional privilege which emphasise the fundamental nature of that privilege:[142]
Legal professional privilege has been described as a right which is fundamental to persons and to our legal system: See Baker v Campbell (1983) 153 CLR 52 at 64 per Gibbs CJ; at 106 per Brennan J; at 113 per Deane J; at 122 per Dawson J. It has also been described as 'a practical guarantee of fundamental, constitutional or human rights': A M & S Europe Ltd v Commission of the European Communities [1983] QB 878 at 941, referred to in Attorney‑General (NT) v Maurice (1986) 161 CLR 475 at 490 per Deane J. Such descriptions point up the importance of the privilege. They serve to show that it is not merely an aspect of curial procedure or a mere rule of evidence but a substantive right founded upon a matter of public interest: Baker v Campbell (1983) 153 CLR 52. The same distinction has been drawn in New Zealand (Commissioner of Inland Revenue v West-Walker [1954] NZLR 191 at 206‑207 per Fair J) and the United Kingdom (R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563 at 612 [31] per Lord Hoffmann).
[141] Glencore International AG v Federal Commissioner of Taxation [2019] HCA 26; (2019) 265 CLR 646.
[142] Glencore International AG v Federal Commissioner of Taxation [21] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
The High Court in Glencore International AG v Federal Commissioner of Taxation made reference to the earlier observations of the majority in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission,[143] to the effect that it is now settled that legal professional privilege is a rule of substantive law and not merely a rule of evidence.[144] The majority in that case held that:
It is an important common law right or, perhaps more accurately, an important common law immunity.[145]
[143] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 [9] - [11] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[144] See also, for example, Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, 490 (Deane J); Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49.
[145] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [11] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
The rules of the Supreme Court of Western Australia are directed to matters of practice and procedure. The court has no power, through those rules, to make or alter substantive rights,[146] including a valid claim for legal professional privilege. The order sought by the appellants would effectively circumvent the appellants' ability to make any claims for privilege. Indeed, counsel for the appellants made it abundantly clear the intention of the order sought in the Summons was to circumvent the privilege.[147]
[146] Gething M, Curwood M and Joseph R, Civil Procedure: Western Australia (vol 1), [1870.1] and [1870.2].
[147] Appeal ts 22.
The nature of Ms Gangemi's evidence, and the existence of claims for privilege, thus points against accepting the procedure proposed by the appellants.
Third, and allied to the foregoing point, the appropriate time for claims of privilege to be made in this case, concerning the evidence of Ms Gangemi, and for those claims to be resolved, will be at the final trial by the trial judge.
Some final observations should also be made, in light of the submissions advanced by the appellants.
Counsel for the appellants submitted that the early reception of Ms Gangemi's evidence would assist the appellants to re‑evaluate their prospects of success in the action.[148] The action was, however, commenced without the benefit of her evidence and, in any event, counsel indicated that there was other evidence upon which the appellants would rely to sustain the relief.[149]
[148] Appeal ts 4 and 28.
[149] Appeal ts 28.
Further, the submissions of the appellants had a tendency to focus on the conduct of the respondent which has required the application to be filed in the first place, and to urge the court to order oral discovery in order to prevent a perceived injustice.[150] Those submissions amounted to little more than a cri de cœur, rather than a principled rationale for these exceptional orders to be made.
[150] Appeal ts 29.
For these reasons, it is not appropriate in the present circumstances to make the orders sought by the appellants, whether that is confined to the filing of an affidavit by Ms Gangemi which sets out her evidence‑in‑chief, or extends to the scheduling of a pre‑trial hearing at which Ms Gangemi is cross‑examined on that affidavit.
On the pleadings, it may be accepted that the evidence of Ms Gangemi is likely to be relevant to the determination of the probate action. Recognition that the solicitor's evidence is relevant to the matters in issue in the action is a necessary step, but far from a sufficient one, to grant orders that would compel the solicitor to provide affidavit evidence, including as to potentially privileged matters, and to be cross‑examined, potentially by both sets of parties, at a mini‑trial prior to the final trial of the action. That is the case whether the solicitor desires to provide that testimony, or not.
Alternative declaration sought by the appellants
By way of alternative relief on this appeal, the appellants have sought a declaration that the respondent has waived the deceased's privilege in his communications with Ms Gangemi that relate to the deceased's testamentary intentions after the making of the will in question.[151]
[151] Orders Wanted [9], WAB 33.
An order of this nature was not sought below.
The appellants submit that this alternative declaration can be made on the basis that the respondent has put the deceased's state of mind in issue through the filing of a counterclaim which seeks Letters of Administration be granted in solemn form.[152] The appellants submit this declaration is a 'neater and simpler way' of ensuring Ms Gangemi's evidence is available, compared to O 73 r 20(1) RSC. I disagree.
[152] Appellants' submissions [69], WAB 26.
A consideration as to whether legal professional privilege has been waived requires a consideration of all the relevant circumstances, and should not ordinarily be undertaken at large, as an alternative form of relief on an appeal from interlocutory orders. In the present case, it is a matter properly left for the trial judge to determine, once evidence is sought to be adduced at trial and a proper claim for privilege is first made. As matters stand, the question of waiver would be undertaken in a vacuum.
During the course of argument, counsel for the appellants further submitted that the court had power to override or nullify any legal professional privilege which attached to the communications between Ms Gangemi and the deceased.[153] No authority which survived even rudimentary examination was cited by the appellants' counsel in support of that proposition.[154] That is not surprising. As already explained, legal professional privilege is not merely an aspect of curial procedure or a mere rule of evidence, but rather is a substantive right founded upon a matter of public interest.
[153] Appeal ts 22 - 24.
[154] Counsel for the appellants referred to both McMeckan v Aitken [1891] VicLawRp 64; (1891) 17 VLR 301 (Hodges J) and Sala Tenna v Di Lena [2020] WASC 426 (Registrar Whitby, as her Honour then was), neither of which is authority for the proposition which counsel advanced.
The appellants' submission that the court might exercise some power to override or nullify any such privilege attaching to the communications between Ms Gangemi and the deceased is wholly misconceived.
The role of Prof. Dr Janssen
Before I conclude these reasons, it is necessary to comment on the role of Prof. Dr Janssen as counsel in these proceedings.
Prof. Dr Janssen's role as counsel was raised by the Master in the proceedings below, at the directions hearing on 11 August 2022. The Master's concern was directed at the possibility that Prof. Dr Janssen might be a witness at trial.[155]
[155] ts 20.
Ahead of the appeal hearing, this court directed that a letter be sent to Prof. Dr Janssen foreshadowing that the court might raise with him, in the event he appeared as counsel for the respondent, whether it was appropriate for him to do so.[156] The court raised a concern as to whether Prof. Dr Janssen had the necessary independence required of counsel by the Legal Profession Uniform Conduct (Barristers) Rules 2015 (WA).
[156] Letter from the Court of Appeal Registrar to Prof. Dr Janssen dated 8 January 2024.
It is, of course, fundamentally important that counsel appearing before the court, whether on appeal or otherwise, is able to discharge their overriding duty to the court to act with independence in the interests of the administration of justice.[157] When the foregoing matters were raised with Prof. Dr Janssen at the hearing of the appeal, he informed the court he saw no issue with appearing as counsel in the matter.[158] I hold a different view, by reason of the following matters.
[157] Legal Profession Uniform Conduct (Barristers) Rules 2015 (WA), r 23; Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 [10] ‑ [12] (Mason CJ); D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 [105] - [111], [192] (McHugh J), [337] (Kirby J); Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4 [192] (Chaney J).
[158] Appeal ts 2 - 3.
First, the position of Prof. Dr Janssen as the administrator to the estate is significant. He holds his position pursuant to the court's grant of Letters of Administration. He is the appointee of the court. As administrator, he owes fiduciary duties to the estate.[159]
[159] McIntosh v McIntosh [2014] QSC 99 [69] (Atkinson J); Burgess (as administrator of the estate of Burgess) v Burgess [2018] WASC 279 [69] (Kenneth Martin J).
Second, there is a real possibility that Prof. Dr Janssen will be a witness at the final trial of the probate action, in his capacity as the administrator of the estate. Rule 101(d) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (WA) requires that a barrister must refuse to accept or retain a brief or instructions to appear before a court if the barrister has reasonable grounds to believe that the barrister may, as a real possibility, be a witness in the case. This rule applies not only to the hearing at which evidence is to be given. The rule is broader in operation than that, as explained by Chaney J in Sheraz Pty Ltd v Vegas Enterprises Pty Ltd:[160]
Once it becomes apparent that a practitioner's independence is affected by some personal connection, either with the client or the subject matter of the proceedings, of the type with which the rules referred to above deal, the practitioner should cease to act in the matter generally.
[160] Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [194] (Chaney J).
Third, the core duty of an administrator is to get in estate assets, pay expenses and liabilities of the testator, then distribute the residue of the estate in accordance with the law, and then produce accounts.[161] It can be accepted that an administrator also has a role in defending claims against the estate that he or she believes lack legitimacy. However, it is not the function of an administrator to unthinkingly contest or defend all claims against the estate.[162] There will be proceedings which require the administrator to carefully consider the role he or she is required to perform, and the powers he or she should exercise.
[161] Administration Act, ss 8, 10, 13, 14, and 43; In re Hayes' Will Trusts [1971] 1 WLR 758, 765 (Ungoed‑Thomas J).
[162] Chesney v Tognola [2011] QSC 340 [23] (Douglas J); Munro v Munro [2017] SASC 48 [25] (Stanley J).
Fourth, the present proceedings put squarely in issue the identity of the proper personal representative of the deceased. Indeed, Prof. Dr Janssen has surrendered the original grant to the court while the probate action is on foot. The proceedings initiated by the appellants seek final relief to revoke the grant of Letters of Administration, and to have probate of a copy of the 2011 Will granted in solemn form. It is not axiomatic that such a claim should be fiercely defended by the respondent, nor that the respondent should exercise the deceased's rights to preclude relevant, but potentially privileged, evidence being adduced in the proceedings by asserting that privilege.
Fifth, it is well accepted that probate proceedings involve a strong public interest element. The court is exercising a jurisdiction directed at the due and proper administration of a particular estate, having regard to any duly expressed testamentary intention of a deceased and the respective interests of the parties beneficially entitled to that estate. The principle is of long standing, but finds relatively recent restatement in several decisions of the New South Wales Supreme Court.[163]
[163] Re Kouvakas [115] (Lindsay J); Boyce v Bunce[60] (Lindsay J); Re Estates Brooker-Pain and Soulos [60] (Lindsay J); Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502 [146] ‑ [153] (Meek J).
The court would be assisted in exercising its inquisitorial role by receiving all relevant and admissible evidence to ensure effect can be given to the competent wishes and intentions of the deceased. A tension arises in this regard if privilege is asserted to preclude relevant evidence being admitted. This may contribute to the dysfunctionality of the proceedings and a likely material increase in the costs to all parties.
In the circumstances of this case, it would be highly desirable for the administrator to take independent advice as to the manner in which the proceedings are being conducted and as to the assertion of claims of privilege, and for an independent barrister to be appointed to represent the administrator as counsel. That ought to have been done long before now.
Conclusion and orders
For the foregoing reasons, I would grant leave to appeal in respect of grounds 1 and 2 and I would allow the appeal on that basis. I would not uphold ground 3.
In substitution for the orders made by the Learned Master, but to the same effect, I would order that the Summons filed by the plaintiffs dated 15 June 2022 be dismissed and the costs of the summons including any reserved costs be costs in the cause. Further, the application in the appeal filed by the respondent should be dismissed.
I would hear from counsel as to the costs of the appeal.
Finally, upon remittal to the General Division, orders should be made for the action to be admitted to the Commercial and Managed Cases List to be managed by a judge.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
WH
Research Associate to the Honourable President Buss
9 FEBRUARY 2024
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