Plan B Trustees Ltd v Maitland Parker
[2012] WASC 392
•23 OCTOBER 2012
PLAN B TRUSTEES LTD -v- MAITLAND PARKER [2012] WASC 392
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 392 | |
| Case No: | CIV:1494/2012 | ON THE PAPERS | |
| Coram: | EDELMAN J | 23/10/12 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | The court has jurisdiction to make the directions sought | ||
| A | |||
| PDF Version |
| Parties: | PLAN B TRUSTEES LTD as trustee for MARTU IDJA BANYJIMA CHARITABLE TRUST MAITLAND PARKER as personal representative of the beneficiaries of MARTU IDJA BANYJIMA CHARITABLE TRUST ATTORNEY GENERAL FOR WESTERN AUSTRALIA BHP BILLITON IRON ORE PTY LTD |
Catchwords: | Trusts and trustees Application for directions Preliminary issue concerning jurisdiction of the Court to give the directions sought Cases in this Court suggesting restrictive approach to jurisdiction should not be followed |
Legislation: | Administration Act 1903 (WA), s 45 Law of Property Amendment Act 1859 (Eng, Wales, and Northern Ireland), s 30 Supreme Court Act 1935 (WA), s 16(1)(d) Trustee Act 1925 (NSW), s 63 Trustees Act 1893 Trustees Act 1900 (WA), s 45 Trustees Act 1962 (WA), s 92 |
Case References: | Chettiar v Chettiar (No 2) [1962] 2 All ER 238 Duckworth v Water Corporation [2012] WASC 30 Featherby v Grljusich (Unreported, WASC, Library No 980238, 1 March 1998) Green v Wilden Pty Ltd [2005] WASC 83 (S) Harrison v Mills [1976] 1 NSWLR 42 IBN Corporation Pty Ltd v Banjyma Aboriginal Corporation [2009] WASC 279 Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 Re Atkinson deceased [1971] VR 612 Re Brogden (1888) 38 Ch D 546 Re Estate of Anastasios Keriacules Challis [2010] WASC 333 Re George Sinnamon [1940] QWN 57 Re Hooper (1861) 29 Beav 656; 54 ER 782 Re Hooper (1861) Jur NR 595 Re Nilant [2004] WASC 7; (2004) 28 WAR 81 Re Pryce [1917] 1 Ch 234 Re Saunders Nominees Pty Ltd [2007] WASC 152 Tsaknis as executor and trustee of the estate of Geoffrey Douglas Roland Lilburne v Lilburne [2010] WASC 152 Westpoint Management Ltd v Sunjet Pty Ltd [2006] WASC 313 Will of Gilchrist (1867) 6 SCR (NSW) Eq 74 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MAITLAND PARKER as personal representative of the beneficiaries of MARTU IDJA BANYJIMA CHARITABLE TRUST
First Defendant
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Second Defendant
BHP BILLITON IRON ORE PTY LTD
Third Defendant
Catchwords:
Trusts and trustees - Application for directions - Preliminary issue concerning jurisdiction of the Court to give the directions sought - Cases in this Court suggesting restrictive approach to jurisdiction should not be followed
(Page 2)
Legislation:
Administration Act 1903 (WA), s 45
Law of Property Amendment Act 1859 (Eng, Wales, and Northern Ireland), s 30
Supreme Court Act 1935 (WA), s 16(1)(d)
Trustee Act 1925 (NSW), s 63
Trustees Act 1893
Trustees Act 1900 (WA), s 45
Trustees Act 1962 (WA), s 92
Result:
The court has jurisdiction to make the directions sought
Category: A
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
Plaintiff : Allens
First Defendant : Roe Legal Services
Second Defendant : State Solicitor for Western Australia
Third Defendant : Ashurst Australia
Case(s) referred to in judgment(s):
Chettiar v Chettiar (No 2) [1962] 2 All ER 238
Duckworth v Water Corporation [2012] WASC 30
Featherby v Grljusich (Unreported, WASC, Library No 980238, 1 March 1998)
Green v Wilden Pty Ltd [2005] WASC 83 (S)
Harrison v Mills [1976] 1 NSWLR 42
IBN Corporation Pty Ltd v Banjyma Aboriginal Corporation [2009] WASC 279
(Page 3)
Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Re Atkinson deceased [1971] VR 612
Re Brogden (1888) 38 Ch D 546
Re Estate of Anastasios Keriacules Challis [2010] WASC 333
Re George Sinnamon [1940] QWN 57
Re Hooper (1861) 29 Beav 656; 54 ER 782
Re Hooper (1861) Jur NR 595
Re Nilant [2004] WASC 7; (2004) 28 WAR 81
Re Pryce [1917] 1 Ch 234
Re Saunders Nominees Pty Ltd [2007] WASC 152
Tsaknis as executor and trustee of the estate of Geoffrey Douglas Roland Lilburne v Lilburne [2010] WASC 152
Westpoint Management Ltd v Sunjet Pty Ltd [2006] WASC 313
Will of Gilchrist (1867) 6 SCR (NSW) Eq 74
(Page 4)
Introduction 5
The relevant directions sought 5
The background to s 92 of the Trustees Act 1962 (WA) 7
The former view of s 92 in this Court and the concern of Plan B Trustees 9
The restrictive approach is not a restriction on jurisdiction 11
(1) A lack of significant support for the restrictive approach in authority 11
(2) The express words of s 92 of the Trustees Act 1962 (WA) 13
(3) The legislative history of s 92 of the Trustees Act 1962 (WA) 14
The approach to jurisdiction applied to this case 15
Conclusion 16
(Page 5)
- EDELMAN J:
Introduction
1 The trial of this matter is to be heard on 28 and 29 November 2012. The trial concerns an application for directions under s 92 of the Trustees Act 1962 (WA). The application is brought by Plan B Trustees Ltd by originating summons. Since 27 April 2011, Plan B Trustees has been the trustee of the Martu Idja Banyjima Charitable Trust.
2 Following a strategic conference in this matter, and prior to the forthcoming trial, a preliminary issue has arisen. The preliminary issue concerns whether this Court has jurisdiction, in the sense of power, to make the directions sought. No particular orders were sought in relation to this preliminary issue. This Court has jurisdiction to determine its own jurisdiction.
3 This jurisdictional question arises because of a line of decisions in this Court which have held, or suggested, that this Court’s power to give directions to a trustee does not permit the determination of substantive issues, such as issues of interpretation of the trust document which involve the question of breach of trust by any of the trustees. Two of the decisions in this line of decisions concluded that there is no power to give directions on such matters. Those decisions should not be followed.1
4 The directions which will be sought at trial broadly concern whether Plan B Trustees is justified in not commencing legal proceedings; alternatively directions are sought that it is justified in commencing legal proceedings for a declaration as to various matters. After receiving written submissions from all the parties my conclusion is that it is within the jurisdiction of this Court to make these directions.
The relevant directions sought
5 The directions sought in the Further Amended Originating Summons for directions which are relevant to this preliminary issue are as follows:
1. The Trustee is justified in not taking legal proceedings to recover payments made to Christensen Vaughan Lawyers in respect of legal fees (as identified in Schedule A hereto) on the basis that as a matter of construction of the Deed the payments are within the terms of the Deed, as:
- (a) such payments were made towards the promotion of a 'Charitable Object' within the meaning of the Deed as they were for the promotion and protection of Aboriginal culture for Community Benefit in that they assisted the MIB People in asserting and maintaining traditional rights and interests to land including the protection of culturally significant areas; and
(b) to the extent that the payments breached the threshold for utilisation of Available Income in clause 5C.9 of the Deed, the payments were made pursuant to clauses 6.3 and, or 8(a) of the Deed.
- 2. Alternatively to 1 above, the Trustee is justified in commencing proceedings by writ in this Honourable Court seeking a declaration that:
(a) as a matter of construction of the Deed, the payments made to Christensen Vaughan Lawyers in respect of legal fees (as identified in Schedule A hereto) were within the terms of the Deed as they were made towards the promotion of a 'Charitable Object' within the meaning of the Deed as they were for the promotion and protection of Aboriginal culture for Community Benefit in that they assisted the MIB People in asserting and maintaining traditional rights and interests to land including the protection of culturally significant areas and such payments were made pursuant to clauses 6.3 and, or, 8(a) of the Deed; or
(b) alternatively, if the payments were not within the terms of the Deed, Christensen Vaughan Lawyers is nonetheless entitled to retain those fees in return for the services it provided bona fide and without knowledge of any breach of the Deed.
(Page 7)
7 The sense in which the words of the originating summons are less well chosen is the asserted basis for the justification: 'that as a matter of construction of the Deed the payments are within the terms of the Deed'. There are two possible difficulties.
8 First, there is some ambiguity in these words. On one reading, the words are superfluous, indicating merely that advice is sought by relying, as a matter of legal submission, on one factor which is the asserted weakness of any proceedings which might be brought. The submission would be that this factor is a sufficient reason to justify the trustee abstaining from suing.
9 On another reading, the words seek a conclusive judicial determination of the construction of the words of the trust deed. Such a conclusive determination is not necessary for directions that Plan B Trustees is justified in not suing. There is a distinction between deciding whether a trustee would be justified in suing or abstaining from suing, and determining the issue which would be decided in the proceedings proposed to be taken.3 Judicial advice proceedings are not to be treated as a trial of the issues that are to be agitated in the principal proceedings.4
10 There may also be issues at trial concerning whether discretion should be exercised to give directions in relation to questions which concern the construction of the instrument creating the trust. These questions involve consideration of the legislative history of s 92 of the Trustees Act 1962 (WA)which is discussed below in the context of considering the jurisdiction question.
The background to s 92 of the Trustees Act 1962 (WA)
11 The English legislation which preceded the introduction of the relevant judicial advice provision in Western Australia was the Law of Property Amendment Act 1859 (Lord St Leonards' Act) which provided in s 30 for the power of a judge of the High Court of Chancery to hear a petition or summons by a trustee for the 'Opinion, Advice, or Direction' of the judge on any question 'respecting the Management or Administration of the Trust Property…'.
(Page 8)
12 Although the English Trustees Act 1893 repealed s 30 of Lord St Leonards' Act,that provision was included, in an expanded form, in the Trustees Act 1900 (WA). The responsible Minister explained in the second reading speech of the Trustees Act 1900 (WA) that the Western Australian legislation had been based on the English legislation.5
13 Section 45 of the Trustees Act 1900 (WA)relevantly provided:
45(1) The Court may, on the application of any trustee, make such orders as to it may seem meet in all or any of the following matters ...
(vi) All questions arising in connection with the administration of the trust, the control or management of the trust estate, and the construction of the instrument creating the trusts, including the rights of all beneficiaries under the trust.
15 The Trustees Act 1900 (WA) was replaced by the Trustees Act 1962 (WA), which remains in force. Delivering a paper to the Law Summer School in 1963, Mr G A Kennedy (later, Kennedy J of the Supreme Court of Western Australia) explained numerous ways in which the 1962 Act had expanded and liberalised the regime which had existed in Western Australia since 1900.7
16 In relation to the judicial advice provisions, s 92 of the Trustees Act 1962 (WA) replaced the reference to 'orders' with a reference to 'directions' and removed the reference to the head of jurisdiction concerning 'construction of the instrument creating the trusts…' In place of that head of jurisdiction concerning construction there was inserted two new heads of subject matter jurisdiction.
17 Section 92(1) of the Trustees Act 1962 (WA) provides as follows:
92. Directions, trustee may ask Court for
(1) Any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee.
(Page 9)
18 Section 92 of the Trustees Act 1962 (WA) therefore materially departed from s 45 of the 1900 Act in relation to subject matter jurisdiction. From 1962 there were three heads of subject matter jurisdiction: (i) any property subject to a trust; (ii) the management or administration of that property; and (iii) the exercise of any power or discretion vested in the trustee.
9 The words adopted in s 92 differ from the provisions in some other Australian States. In particular, the provision differs from the New South Wales provision which was considered by the High Court in the Macedonian Orthodox Community Church case.8 The New South Wales provision9 involves a considerably more detailed scheme for directions and, in relation to subject matter jurisdiction New South Wales, follows the same approach taken by the 1900 Western Australian provision: it includes a head of power in relation to 'the interpretation of the trust instrument …' but not in relation to 'any property subject to a trust' nor 'the exercise of any power or discretion vested in the trustee'.
The former view of s 92 in this Court and the concern of Plan B Trustees
20 In the last decade there has been a line of cases in this Court in which it has been held, or suggested, that this Court's powers to give directions to a trustee under s 92 should not be used to determine substantive issues, such as issues of interpretation of the trust document which involve the question of breach of trust by any of the trustees.10
21 In each case, the relevant decision approved academic commentary from various editions of a text by Professors Dal Pont and Chalmers.11 In 1998, in Featherby v Grljusich,12 the first case in the Western Australian line of decisions, quoted from the first edition of that text as follows:13
This statutory jurisdiction is attended essentially for private advice by the court to trustees as to what course of action they should follow where they are in doubt as to the propriety of the action contemplated ... Three situations in which approach to the court is particularly useful are where:
- (a) the issue is whether legal proceedings ought to be instituted or defended; (b) it is desired to effect an early distribution of an estate; and (c) the trustee is in doubt as to the extent of her or his powers under the trust instrument ... The procedure should not be used to determine substantive issues, such as issues of interpretation of the trust document which involved the question of breach of trust by any of the trustees; for the purpose of securing additional powers for the trustees; and for resolving a contest between the trustees or other parties to a trust. Nor should it be used to determine respective rights of beneficiaries. These are matters in respect of which beneficiaries are entitled to initiate proceedings. (emphasis added)
23 In two cases in the line of authority in this Court, the restrictive approach was applied to reach conclusions that there was no jurisdiction to give the directions sought in those cases. In Featherby v Grljusich14itself it was held that it was 'not possible' to give directions concerning the proper remuneration of the trustees. In Re Nilant15 it was held that the section did not 'permit' directions concerning the disposal of the trust property where the disposal would have the effect of terminating the trust.
24 Other decisions in the line of authority referred to the restrictive approach with approval, although in the context of issues which did not involve s 92 directions,16 or in the course of distinguishing the restrictive approach and treating the considerations involved as matters relevant to discretion not jurisdiction.17
25 For the reasons below, an application of the restrictive approach to jurisdiction should no longer be accepted in this Court. No question presently arises as to the approach to be taken to exercise of discretion. That is a matter to assess in light of all the circumstances present at trial.
(Page 11)
The restrictive approach is not a restriction on jurisdiction
26 There are three reasons why the restrictive approach is not a restriction on the jurisdiction of this Court to give directions in relation to the questions raised.
(1) A lack of significant support for the restrictive approach in authority
27 The restrictive approach, as it has been applied in this jurisdiction, has relied upon the passage by Professors Dal Pont and Chalmers. As quoted above, the passage, including the expression 'should not', is not clearly expressed as involving a concern with jurisdiction.
28 More importantly, the cases which were footnoted in the passage do not provide support for a restrictive approach to jurisdiction in this Court. Three cases were footnoted. The first was Harrison v Mills.18 In that case, Needham J declined to give advice which was sought under the New South Wales provision. The plaintiff in that case relied upon the New South Wales subject matter jurisdiction 'respecting the interpretation of the trust instrument'. Needham J declined to give advice and, in the course of his Honour’s reasons, explained that the questions fell within that head of jurisdiction, but that ‘it is not … every such question which will be the subject of opinion, advice, or direction of the Court to a trustee’.19 In other words, the Court might not give advice, as a matter of discretion not lack of jurisdiction, in a situation which involves 'questions of interpretation of the document, if they involve the question of breach of trust by any of the trustees … where the basic facts upon which the Court acts are not, in any sense, proved or tested'.20
29 The other two cases footnoted were Will of Gilchrist21 and Re George Sinnamon.22 Those cases also concern the different provisions in New South Wales and Queensland respectively.23 On that basis, they are also not of immediate authority in Western Australia. However, as the High Court observed in the Macedonian Orthodox Community Church case,24 neither of those cases supports the proposition that the relevant
(Page 12)- New South Wales and Queensland sections are 'an inappropriate mechanism for determining substantive rights in contested proceedings'.
31 However, an English authority which was relied on in Will of Gilchrist26might provide some support for the restrictive approach to jurisdiction. That authority is the decision in Re Hooper.27Re Hooper was one of the early decisions on s 30 of Lord St Leonards' Act. In that case, the Master of the Rolls, Sir John Romilly, considered a trustee's petition for the opinion of the court. Romilly MR refused to give the advice sought.
32 In Beavan's report of Re Hooper, he records that the Master of the Rolls had stopped the case because the case concerned the effect of a limitation in the trust instrument and 'ought, for the assistance of the Court' to be argued by the opposing parties. Beavan records the Master of the Rolls saying that the case did not fall within the object of s 30, 'to assist trustees in the execution of the trusts, as to little matters of discretion'.28
33 A more comprehensive report of the remarks of the Master of the Rolls appears in the New Series of the Jurist Reports.29 There the Master of the Rolls is reported as saying that he 'cannot decide the question raised by this petition without hearing the arguments on both sides ... [the section] was not intended thereby to enable them, in this summary way, to determine questions of construction'.30
(Page 13)
34 In the Macedonian Orthodox Community Church case, the plurality in the High Court referred to, and distinguished, Re Hooper on the following basis:31
So far as there is authority suggesting that it is beyond the power of the court to give advice to be used for "adversarial purposes" or to decide a matter in issue between parties (eg Re Hooper (1861) 29 Beav 656 [54 ER 782]), it dates from a time before the additional words were inserted into what is now s 63(1) and before s 63(8) - (10) were inserted – in the case of New South Wales, in 1925.
35 This reasoning does not apply to the Western Australian provision which does not contain the additional words in s 63(1) ('interpretation of the trust instrument') and which does not contain any equivalent to s 63(8) - (10). However, the decision in Re Hooper is distinguishable in Western Australia for two reasons: (i) the difference in the words used in s 92 of the Trustees Act 1962 (WA) from the words in Lord St Leonards’ Act and the legislative intention manifest in s 92 to expand the subject matter jurisdiction of the Trustees Act 1962 (WA); and (ii) the questions of construction were raised in Re Hooper as direct questions, not matters incidental to directions on a different issue.
(2) The express words of s 92 of the Trustees Act 1962 (WA)
36 A second reason why the restrictive approach to jurisdiction should no longer be applied in this Court is that there are no express words in s 62 of the Trustees Act 1962 (WA) which suggest that there is any jurisdictional bar to the power to give directions if the directions concern the interpretation of the trust instrument.
37 As the High Court plurality reiterated in the Macedonian Orthodox Community Church case32 in the context of the New South Wales judicial advice provision:
It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.
38 The only express requirement of subject matter jurisdiction is that the direction sought concerns either (i) any property subject to a trust; (ii) the (Page 14)
- management or administration of that property; or (iii) the exercise of any power or discretion vested in the trustee.
(3) The legislative history of s 92 of the Trustees Act 1962 (WA)
40 A third reason why the restrictive approach should no longer be applied in this Court is that the legislative history of s 92 negates the possibility of any implied limitation on jurisdiction which would prevent the procedure being used to determine substantive issues, such as issues of interpretation of the trust document.
41 The High Court explained in the Macedonian Orthodox Community Church case,33 that Lord St Leonards' Act was enacted against a background conception which continues to have vitality of the often gratuitous, yet potentially onerous and sometimes dangerous, nature of a trustee's undertakings. In 1896, Augustine Birrell QC, at that time the Quain Professor of Law at University College London, wrote of the pressure upon a typical trustee:34
who from a sense of cronyship has consented to act as a Trustee under the will of a neighbour with whom on market days he has often had a friendly glass. There he stands, ignorant for certain, pigheaded very likely, quarrelsome possibly, but honest, palpably honest and perspiring. He is charged with losses occasioned under the strict language of a will he never understood.
42 This conception favours a broad approach to the exercise of discretion to resolving doubt about whether it is proper for a trustee to incur the costs and expenses of prosecuting or defending litigation. The same considerations require that no narrow approach be taken to the jurisdiction of the Court to give such directions.
43 As I have explained, the Trustees Act 1900 (WA) contained the express words 'construction of the instrument creating the trusts…'. The inclusion of those express words conferred specific jurisdiction in 1900 to
(Page 15)- give directions about interpretation of the trust document. Although these words were removed in the Trustees Act 1962 (WA), this removal could not have been done for the purpose of removing from the Court's jurisdiction the power to give directions in any matter which required consideration of the construction of the trust deed. There could be few, if any, instances where a Court could give directions concerning the exercise of any power or discretion vested in the trustee by a written instrument without considering the construction of the trust deed.
The approach to jurisdiction applied to this case
45 The proper approach to whether directions fall within the subject matter jurisdiction of s 92 of the Trustees Act 1962 (WA) is to start by comparing the text of the directions sought with the text of s 92, construed as I have indicated above.
46 The directions sought, as set out above at [5], ask whether Plan B Trustees is 'justified in not taking legal proceedings …', alternatively whether Plan B Trustees 'is justified in commencing proceedings by writ in this Honourable Court seeking a declaration'. Both of these directions are quintessentially examples of directions 'respecting the exercise of any power or discretion vested in the trustee' within the meaning of s 92. In the circumstances of this case the directions also related to the subject matter jurisdiction 'concerning any property subject to a trust'.
47 Numerous cases in this jurisdiction have accepted that there is jurisdiction to give such directions under s 92.35 There is also long standing authority to this effect in England, and other jurisdictions in the
(Page 16)
- context of legislation modelled on Lord St Leonards' Act.36 And, for the reasons explained above:
(1) it is not a restriction upon this Court's jurisdiction to give such directions that the directions may involve the determination of substantive issues, such as issues of interpretation of the trust document or that the proceedings are non-adversarial in character; and
(2) it equally cannot be a restriction upon this Court's jurisdiction to give such directions that the directions, such as those sought in this case, merely involve the consideration of the strength of arguments concerning substantive issues, such as the interpretation of the trust document.
48 The preliminary issue in this case was properly raised by Plan B Trustees due to the line of decisions in this Court which relied upon or approved the restrictive approach that the judicial advice procedure should not be used to determine substantive issues, such as issues of interpretation of the trust document which involved the question of breach of trust by any of the trustees.
49 It does not appear that there was any argument concerning the basis in authority for the restrictive approach in any of the cases in this Court which cited, or relied upon, the passage by Professors Dal Pont and Chalmers. As E M Heenan J has explained, the earlier statements in cases concerning the restrictive approach now need to be read in light of the decision of the High Court in the Macedonian Orthodox Community Church case.37 The authority of those cases for the restrictive approach to either jurisdiction or discretion was rejected in the context of the (different) New South Wales provision in the Macedonian Orthodox Community Church case.
50 In the latest edition of Equity and Trusts in Australia, now edited only by Professor Dal Pont, the passage previously relied upon in this Court is recanted, after reference to the decision in Macedonian Orthodox
(Page 17)- Community Church for the proposition that the only jurisdictional bar is contained in the relevant words of the provision.38
51 Some of the points made by the High Court in the Macedonian Orthodox Community Church case also apply in the context of the different provision in s 92 of the Trustees Act 1962 (WA). And thelegislative history and purpose of s 92 of the Trustees Act 1962 (WA) also requires that the restrictive approach to jurisdiction be rejected.
52 This conclusion is sufficient to dispose of the preliminary issue. Nothing further needs to be said concerning the alternative source of power which Plan B Trustees identified for this Court to make the directions sought: s 16(1)(d) of the Supreme Court Act 1935 (WA). That sub-section, broadly summarised, confers power to do all things necessary for the due execution of such equitable jurisdiction as the Lord Chancellor of England could have done in 1861. That date is after the enactment of Lord St Leonards' Act but before the provision of the summary procedure in the RSC 1883, O 55 r 3(e) - (g). It is unnecessary to consider whether there remains anything to 'pick up' under s 16(1)(d) of the Supreme Court Act 1935 (WA), or whether anything can be picked up, outside the scope of s 92 of the Trustees Act 1962 (WA).
53 Nor is it necessary to consider the basis or scope for the power in O 58 r 2(e) - (g) of the Rules of the Supreme Court 1971 (WA)or s 45 of the Administration Act 1903 (WA).
54 Nor does anything need to be said in relation to whether (i) the discretion should be exercised to make directions in this matter, including the proper approach to the exercise of discretion; or (ii) the directions which should be given if discretion is exercised to answer the questions raised by Plan B Trustees. These are matters to be considered in the forthcoming proceeding.
______________________________________
1 See Duckworth v Water Corporation [2012] WASC 30 [26] - [31].
2Re Pryce [1917] 1 Ch 234.
3Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66, 104 [111] (Gummow ACJ, Kirby, Hayne & Heydon JJ).
4Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66, 94 [74] (Gummow ACJ, Kirby, Hayne & Heydon JJ).
5 See Western Australia, Parliamentary Debates, Legislative Assembly, 9 October 1900, 903 (Mr James).
6 See Western Australia, Parliamentary Debates, Legislative Assembly, 18 October 1962, 1853 (Mr Court).
7 Kennedy G A, 'Administration of Trust Estates in Western Australia' (1963) 6 University of Western Australia Law Review 81.
8Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66.
9Trustee Act 1925 (NSW) s 63.
10Featherby v Grljusich (Unreported, WASC, Library No 980238, 1 March 1998) (Parker J); Re Nilant [2004] WASC 7; (2004) 28 WAR 81, 89 [41] (Barker J);Green v Wilden Pty Ltd [2005] WASC 83 (S) (Hasluck J); Westpoint Management Ltd v Sunjet Pty Ltd [2006] WASC 313 [6] - [9] (Martin CJ); Re Saunders Nominees Pty Ltd [2007] WASC 152 [3] (Martin CJ); IBN Corporation Pty Ltd v Banjyma Aboriginal Corporation [2009] WASC 279 [111], [147] - [148] (Hasluck J).
11 Dal Pont G E and Chalmers D R C, Equity and Trusts in Australia and New Zealand (1996) 497. A similar passage appears in the second edition at 668.
12Featherby v Grljusich (Unreported, WASC, Library No 980238, 1 March 1998).
13Featherby v Grljusich (Unreported, WASC, Library No 980238, 1 March 1998) 5 (Parker J).
14Featherby v Grljusich (Unreported, WASC, Library No 980238, 1 March 1998) 8.
15Re Nilant [2004] WASC 7; (2004) 28 WAR 81, 89 [40].
16Green v Wilden Pty Ltd [2005] WASC 83 (S); IBN Corporation Pty Ltd v Banjyma Aboriginal Corporation [2009] WASC 279 [111], [147] - [148] (Hasluck J).
17Westpoint Management Ltd v Sunjet Pty Ltd [2006] WASC 313 [6] - [9], [17] (Martin CJ); Re Saunders Nominees Pty Ltd [2007] WASC 152 [3], [18], [20] - [23] (Martin CJ);
18Harrison v Mills [1976] 1 NSWLR 42.
19Harrison v Mills [1976] 1 NSWLR 42, 44.
20Harrison v Mills [1976] 1 NSWLR 42, 45.
21Will of Gilchrist (1867) 6 SCR (NSW) Eq 74.
22Re George Sinnamon [1940] QWN 57.
23 Section 45 of the Trustees and Executors Act 1897 (Qld) and s 63(1) Trustee Act 1925 (NSW).
24Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66, 103 [108] (Gummow ACJ, Kirby, Hayne & Heydon JJ).
25Re George Sinnamon [1940] QWN 57, 58.
26Will of Gilchrist (1867) 6 SCR (NSW) Eq 74.
27Re Hooper (1861) 29 Beav 656; 54 ER 782.
28Re Hooper (1861) 29 Beav 656, 657; 54 ER 782, 783.
29Re Hooper (1861) Jur NR 595.
30Re Hooper (1861) Jur NR 595, 595.
31Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66, 89 [55] fn 77 (Gummow ACJ, Kirby, Hayne & Heydon JJ).
32Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66, 89 [55] (Gummow ACJ, Kirby, Hayne & Heydon JJ).
33Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66, 93 - 94 [69] - [71].
34 Birrell A, On the Duties of Trustees (1896) 16 - 17.
35Westpoint Management Ltd v Sunjet Pty Ltd [2006] WASC 313 [13] - [17] (Martin CJ); Re Estate of Anastasios Keriacules Challis [2010] WASC 333 [18] (Allanson J); Tsaknis as executor and trustee of the estate of Geoffrey Douglas Roland Lilburne v Lilburne [2010] WASC 152 [36] (E M Heenan J).
36Re Brogden (1888) 38 Ch D 546, 556 (North J); Chettiar v Chettiar(No 2)[1962] 2 All ER 238, 245 (Lord Radcliffe for the Privy Council); Re Atkinson deceased [1971] VR 612, 615 (Gillard J).
37Tsaknis as executor and trustee of the estate of Geoffrey Douglas Roland Lilburne v Lilburne [2010] WASC 152 [40] (E M Heenan J).
38 Dal Pont G Equity and Trusts in Australia (5th ed, 2011) 688.
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