Re Rules of the Supreme Court 1971 (WA)

[2024] WASC 7

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE FRIGGER [2024] WASC 7

CORAM:   SEAWARD J

HEARD:   25 OCTOBER 2023

DELIVERED          :   16 JANUARY 2024

FILE NO/S:   CIV 2097 of 2023

BETWEEN:   ANGELA CECILIA THERESA FRIGGER

Plaintiff by Ex Parte

Catchwords:

Practice and procedure - Leave to file and serve originating summons - Writ refused by Registrar - Whether proposed claim is frivolous, vexatious, or an abuse of process - Turns on own facts

Legislation:

Administration Act 1903 (WA) s 42
Rules of the Supreme Court 1971 (WA) O 67 r 5
Trustees Act 1963 (WA) s 65

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff by Ex Parte : In Person

Solicitors:

Plaintiff by Ex Parte : In Person

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

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256

Flower & Hart v White Industries (Qld) Pty Ltd [2001] FCA 370

Frigger v Frigger [2023] WASCA 103

Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365

Middleton v The State of Western Australia (1992) 8 WAR 256

Patrick Jebb as trustee for The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121

Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 (S)

Re City of Stirling; Ex Parte Tallot [2012] WASC 33

Re Rules of the Supreme Court 1971 (WA); Ex parte Frigger [2019] WASC 175

Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213

Rogers v R (1994) 181 CLR 251

Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93

Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507

Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

SEAWARD J:

Introduction

1. This is an application made by Mrs Angela Cecilia Theresa Frigger pursuant to O 67 r 5 of the Rules of the Supreme Court 1971 (WA) (RSC) seeking leave to file and serve an originating summons dated 15 September 2023.

2. The application was heard ex parte and for the reasons set out below I would dismiss the application for leave to file and serve the originating summons.

Procedural and factual history

1. The relevant factual background to this matter is outlined by the Court of Appeal in the 2023 decision of Frigger v Frigger,[1] and can be relevantly summarised as follows.

   [1] Frigger v Frigger [2023] WASCA 103.

2. The applicant's mother, Evelyn Charlotte Reid, died on 3 February 2021 leaving a will appointing two of her four children (the proposed defendants) as her joint executors.

3. By her will Mrs Reid bequeathed all of her property, both real and personal, to be divided equally between her four children. Further, in the will Mrs Reid left a number of specified items of jewellery to specific family members. The applicant and her daughter were left specific items of jewellery.

4. After Mrs Reid's death, her executors made arrangements for her body to be cremated. At that time COVID‑19 restrictions on gatherings were in place and the body was cremated at an unattended cremation at Fremantle Cemetery on 11 February 2021.

5. Later, on 16 April 2021, a memorial service was held at St Luke's Catholic Church in Woodvale. The applicant and her daughter Jessica were not invited to, and did not attend, this memorial service. The evidence before the Court of Appeal was that there was considerable longstanding hostility between the applicant and some of her family members, and there were a number of family members who would not attend the memorial service if the applicant was present.

CIV 1887 of 2021

1. On 2 September 2021, the applicant filed an originating summons (First Originating Summons) claiming as follows:[2]

   1. The plaintiff was named a beneficiary of her mother, Evelyn Charlotte Reid's last will and testament.

   2. The Will bequeathed the plaintiff certain specified items of jewelry. [sic]

   3. When the plaintiff inquired when assets would be distributed, the defendants informed the plaintiff that they would decide what, if any, jewelry [sic] would be given to the plaintiff.

   4. The defendants are named joint executors of the Will and have failed and/or refused to deliver up the jewelry [sic] bequest.

   5. The defendants secretly arranged the deceased's funeral at some time in April 2021 and deliberately failed and/or refused to inform the plaintiff and her family of those arrangements. The defendants' conduct constituted a breach of right of burial to exclude the plaintiff from expressing her affection for her mother in a reasonable and appropriate manner, which is a compensable loss.

   [2] Affidavit of Angela Cecilia Theresa Frigger sworn 22 September 2023, AF2.

2. The basis of the applicant's claim in the First Originating Summons was that the executors had failed to deliver up the jewellery bequeathed to her and that they had secretly arranged the funeral and had failed to inform the appellant and her family of those arrangements. The applicant contended that this latter conduct constituted a breach of right of burial to exclude the applicant from expressing her affection for her mother. The applicant claimed compensation in relation to both alleged failures on the part of the executors.[3]

   [3] ts 3, 25 October 2023.

3. On 16 March 2022, after the filing of affidavit evidence by the parties and the filing of written submissions by the applicant, Master Sanderson gave brief oral reasons in the absence of the parties dismissing the First Originating Summons.

4. As to the claim regarding exclusion from the memorial service, the master held that the obligation of an executor is to arrange for the proper disposal of the body of the deceased, that there is no property in a corpse and that there is no obligation (either at common law or under any probate practice) to require an executor to notify anyone as to the funeral arrangements.

5. As to the claim regarding the jewellery, the master held that the executors had done all that was required of them to properly administer the estate and had provided the applicant with the opportunity to access her later mother's home so she could collect the jewellery to which she was entitled, and which was still part of the deceased's estate.

Appeal to the Court of Appeal

1. The applicant appealed the master's decision. It is not necessary to detail the individual grounds of appeal, and it is sufficient to observe that the Court of Appeal concluded that none of the grounds had any merit and dismissed the appeal.

2. The Court of Appeal then went on to make a number of findings about the merits of the claims made in the First Originating Summons.

3. In relation to the claim regarding the jewellery, the Court of Appeal found:

   57... The uncontested evidence was that the second respondent had advised the appellant by email on 21 April 2021 that a number of rings were available for collection by Jessica. Though not individually identified in the email to the appellant, the second respondent stated in her affidavit of 6 October 2021 that these rings included the ruby and diamond flower ring and the jade and gold ring. The second respondent stated that she had received no response to her email and the rings had not been collected.

   58At the appeal hearing the appellant said that she had not arranged for collection of the rings, essentially because Jessica did not want to attend the second respondent's home. However, she accepted that she had made no arrangements for any other person to collect the rings on her behalf. This does not support a conclusion that the respondents have failed in their duties to distribute the assets of the estate.

   59As regards the other items of jewellery (the Franklin Mint silver star brooch, the silver chain and bracelet in a grey pouch and the short gold rope chain), the available evidence was that those items no longer formed part of the assets of the deceased at the time of her death. …

   60The assets of an estate are those assets owned by the deceased immediately prior to his or her death. There was nothing to suggest that the executors had failed in their duties in respect of those items of jewellery that formed part of the estate. Clearly the executors could not be required to deliver up items which did not form part of the estate.

   (footnotes omitted)

4. In relation to the claim regarding the failure to invite the applicant to the memorial service, the Court of Appeal found:

   61As regards the claims for compensation in respect of the funeral arrangements, the appellant is simply wrong in suggesting that executors have an enforceable legal duty to ensure that all members of the deceased's family are invited to the funeral. The cases relied on by the appellant do not establish or support the existence of such a duty. To the extent that they are relevant, they establish that an executor cannot use the common law power to dispose of the body in such a way as to exclude family members. A person with the privilege of choosing how to bury a body, or to cremate the body, is expected to consult with other stakeholders, but is not legally bound to do so.

   62This was not a case regarding disposal of the body or relating to the conduct of a funeral. It related to a memorial service held two months after the death and cremation of the deceased. The holding of such a service was not a duty of the executors. It is apparent that the appellant and her family were not invited to that service due to long-held acrimony. Those who arranged and attended the service simply did not want the appellant to be present. That was their prerogative. There is no reasonable basis upon which to assert that the executors were under a legal duty to invite the appellant and her family to that service. Far less can there be any viable claim to compensation for failing to do so.

   (footnotes omitted)

5. The Court of Appeal concluded that the applicant's claims in the First Originating Summons were entirely without merit and made the following observations about the applicant's case in general:

   64 It is highly regrettable that the appellant has seen fit to bring legal proceedings to further what is essentially a personal grievance that is entirely without merit and raises no legal issues. The misuse of public resources of the court has now been compounded by the bringing of this appeal. The proceedings at first instance and on appeal are an abuse of process and should never have been brought.

Second originating summons

1. On 15 September 2023, the applicant attempted to file an originating summons claiming as follows:[4]

   [4] Affidavit of Angela Cecilia Theresa Frigger sworn 22 September 2023, AF3.

   Orders:

   (a)Jessica Ann Frigger be joined as second plaintiff.

   (b)The defendants shall produce to the court bank statements for BankWest account number [redacted] from 1 December 2016 until 31 May 2021.

   (c)The defendants shall deliver to the first plaintiff within 7 days at [address redacted] ruby and diamond flower ring being item No. 5 on page 3 of the deceased's Will.

   (d)The defendants shall deliver to the second plaintiff within 7 days at [address redacted] jade and gold ring being item No. 2 on page 3 of the deceased's Will.

   (e)The defendants shall pay the first plaintiff $1,727.00 plus interest at 5% p.a. from 21 April 2021 until judgment.

   (f)Costs.

   (Second Originating Summons)

2. There was no accompanying affidavit filed with the Second Originating Summons as required by the rules. The applicant explained in her written and oral submissions that she was unable to file the required affidavit on the court's electronic lodgement system as to do so she required a matter number, and as the Second Originating Summons was not accepted for filing, she did not receive one.[5]

   [5] Written submissions [3]; ts 8 - 9.

3. On 20 September 2023, a registrar of this court advised the applicant by letter that the Second Originating Summons had not been accepted for filing as it constituted an abuse of process or a frivolous or vexatious proceeding. In the letter, the registrar refers to and relies on the conclusions of the Court of Appeal in Frigger v Frigger as the basis of the decision to refuse to accept the Second Originating Summons for filing.[6]

   [6] Affidavit of Angela Cecilia Theresa Frigger sworn 22 September 2023, AF1.

4. The letter from the registrar went on to refer to the requirement of O 67 r 5 of the RSC to obtain leave from a Judge or Master.

5. On 22 September 2023, the applicant filed an ex parte notice of motion seeking leave to file the Second Originating Summons, and to join the proposed second plaintiff to the action.

6. The notice of motion is supported by an affidavit of the applicant sworn 22 September 2023 annexing the following documents:

   (a)the letter received by the registrar dated 20 September 2023;

   (b)the First Originating Summons;

   (c)the Second Originating Summons;

   (d)an undated letter sent by the applicant to the executors following the delivery of the Court of Appeal decision;

   (e)an email in response from one of the executors dated 5 September 2023; and

   (f)an email from one of the executors dated 21 April 2021 detailing the finalisation of the estate and attaching a bank statement of the deceased regarding transactions made in relation to administering the deceased's estate.

Legal principles

Seeking leave under O 67 r 5

1. Order 67 r 5 of the Rules of the Supreme Court provides:

   Abuse of process etc., procedure in case of

   (1) If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a judge or a master first had and obtained by the party seeking to file or issue it.

   (2) In the case of a motion or an application ordinarily returnable before a master in chambers, an application for leave to file or issue such motion or application shall be made to a master in chambers.

   (3) In all other cases, an application or commission shall be made to a judge in chambers.

   (4) Applications for leave under subrules (2) and (3) shall be made ex parte and shall be supported by affidavit.

2. Order 67 r 5 does not state the criteria that is to be applied in determining whether to grant or refuse leave to file or issue an originating process. However, it is accepted that a judge should only refuse leave to file or issue the proposed claim if satisfied that the writ or process would be an abuse of process, or a frivolous or vexatious proceeding.[7]

   [7] Re Rules of the Supreme Court 1971 (WA); Ex parte Frigger [2019] WASC 175 [49]; Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 (S) [23]; Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 [20].

3. The court's inherent power to refuse leave to file a proposed writ of summons is to be exercised in circumstances where it is necessary to protect both the court and proposed defendants from an unjustified waste of time and resources where the alleged action has no substance.[8] It is a power which should not be exercised lightly as it denies a potential plaintiff the opportunity to have the matter heard.[9]

   [8] Ex Parte Gates [2018] WASC 213 [31] - [33].

   [9] Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365, 373 - 374; Middleton v The State of Western Australia (1992) 8 WAR 256, 264.

4. Accordingly, the question for determination is whether the Second Originating Summons would be an abuse of process or a frivolous or vexatious proceeding.

5. It is relevant when I consider the application to have regard to the fact that the applicant is a self‑represented litigant with no legal training. It is therefore appropriate to approach the proposed originating summons with flexibility in assessing whether it discloses a viable cause of action which, with appropriate amendments, could be put into proper form.[10] However, in the present case I also observe that whilst the applicant is a self‑represented litigant, she has significant experience appearing in court and in preparing and arguing legal cases.

Frivolous or vexatious

[10] Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213 [3]; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 - 537.

1. There is considerable overlap between the concepts of 'abuse of process' and whether a proceeding is 'frivolous' or 'vexatious', and the expressions are often used in conjunction or interchangeably.[11]

   [11] Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 [25].

2. An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. The term is apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed, or in which there is no serious question to be tried.[12]

   [12] Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 [30] - [31].

3. An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham, and which cannot possibly succeed. An action may also be vexatious if instituted with the intention of annoying or embarrassing the person against whom they are brought, or if brought for collateral purposes, or if it is productive of serious and unjustified trouble and harassment.[13]

Abuse of Process

[13] Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 [30] - [33].

1. What amounts to an abuse of the court's processes is insusceptible to a formulation comprising closed categories.[14] However, in abuse of process cases one or more of the following three characteristics are likely to be present: the invocation of the court's processes for an illegitimate or collateral purpose; the court's procedures being used in a manner that is unjustifiably oppressive to a party, or the court's procedures being used in a manner which brings the administration of justice into disrepute.[15]

   [14] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [9]; Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [25].

   [15] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [15]; Rogers v R (1994) 181 CLR 251, 286.

2. Proceedings are likely to constitute an abuse of process if they are clearly foredoomed to fail,[16] or are plainly unsustainable.[17]

   [16] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393; Re City of Stirling; Ex Parte Tallot [2012] WASC 33 [7]; Re Rules of the Supreme Court 1971 (WA); Ex parte Frigger [2019] WASC 175 [50].

   [17] Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 (S) [23]; Re Rules of the Supreme Court 1971 (WA); Ex parte Frigger [2019] WASC 175 [50].

3. There may also be an abuse of process if a litigant attempts to re‑litigate an issue already decided. In Patrick Jebb as trustee for The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd,[18] Vaughan J summarised the law in this respect as follows:

   106The doctrine of abuse of process is informed in part by considerations of finality and fairness. The underlying public interest is twofold: there should be finality in litigation and a party should not be twice vexed in the same matter. Thus abuse of process may exist where a person seeks to re-litigate an issue already decided. There is a general public interest in the same issue not being litigated over again. It has been said that it would be a 'scandal to the administration of justice' if, a question having been disposed of by one case, the litigant were permitted to set up the case again by changing the form of proceedings.

   107 For a step in a proceeding to amount to an abuse of process by reason of impermissible re-litigation of a dispute it is not necessary that one of res judicata, issue estoppel or Anshun estoppel be applicable.

   …

   109In applying the principles of abuse of process the focus is on matters of substance rather than form.

   110 Factors relevant to determining whether an attempt to re-litigate is an abuse of process were discussed in State Bank of New South Wales Ltd v Stenhouse Ltd. Those factors have been reproduced with apparent approval in a number of intermediate appellate court decisions. The task necessitates an evaluative judgment sensitive to all the facts and circumstances and informed by the public interest in preventing re-litigation of disputes. The court conducts an 'overall balancing of justice' having regard, among other things, to the extent of the oppression and unfairness to the other party if the issue was relitigated and the impact of the re-litigation on the principle of finality and public confidence in the administration of justice.

   (footnotes omitted)

   [18] Patrick Jebb as trustee for The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121.

1. Further, there may be an abuse of the process if a litigant seeks to litigate matters which could and ought reasonably have been litigated in earlier proceedings.[19] In Tomlinson v Ramsey Food Processing Pty Ltd,[20] four members of the High Court held:

   Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. … (emphasis added)

   [19] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [26]; Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [11]; Patrick Jebb as trustee for The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121 [111] - [114].

   [20] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [26].

Applicant's case

1. The applicant submits that the Second Originating Summons is not an abuse of process as it is a different case to that contained in the First Originating Summons and it arises from, and is consequential upon, the factual and legal findings of the Court of Appeal in Frigger v Frigger.[21] The applicant says that she is therefore not trying to re-litigate something that she litigated before.[22]

   [21] Written submissions [6].

   [22] ts 8.

2. In relation to the jewellery claim, the applicant submits that the Court of Appeal found that the executors did not breach their duty to deliver up the jewellery gifts by asking that the applicant's daughter collect the jewellery.[23] The applicant then wrote to the executors requesting to arrange time to collect the jewellery.[24] One of the executors then responded stating that they no longer wished for the applicant's daughter to collect the jewellery[25] and instead advised that it would be necessary for the applicant to organise and pay for registered post or a courier to collect the jewellery.[26]

   [23] Affidavit of Angela Cecilia Theresa Frigger sworn 22 September 2023 [7].

   [24] Affidavit of Angela Cecilia Theresa Frigger sworn 22 September 2023 [8] and AF4.

   [25] Affidavit of Angela Cecilia Theresa Frigger sworn 22 September 2023, AF5 - stating that the executor did not feel safe in the presence of the applicant or her daughter.

   [26] Affidavit of Angela Cecilia Theresa Frigger sworn 22 September 2023 [9] and AF5.

3. The applicant's case is that she does not consider that she (or her daughter) should be required to bear the risk of the loss of the jewellery (being their only mementos from her mother) through third party involvement or that she should bear the cost of the delivery of the jewellery. Further, the applicant says that there is no reason why one of the other executors (who lives closer to the applicant) could not be given the jewellery.[27] The applicant says that she is therefore seeking an order that the executors stick with the arrangement and arrange to deliver the jewellery to her by the applicant's daughter being able to collect the jewellery.[28]

   [27] Affidavit of Angela Cecilia Theresa Frigger sworn 22 September 2023 [9]; ts 6 - 7.

   [28] ts 6 - 7, 12 - 14.

4. After the hearing in the matter, the applicant filed an additional affidavit sworn 21 December 2023 in which she relevantly deposes that:

   2.Following the hearing of my application on 25 October 2023, I decided that if I was able to collect the rings that my mother had gifted to my daughter and me, I would write to her honour and withdraw this application prior to delivery of judgment.

   3.On 15 December 2023 I sent an email to the executors, requesting them to advise a convenient time during the period 20-22 December 2023 for a courier to collect the rings. Attached and marked AF1 is copy of my email.

   4.I have not received any response to my request.

5. In relation to the memorial expenses claim, the applicant submits that when she commenced the First Originating Summons, she understood that a funeral had been held for her mother, based on the bank statement she had been given by the executors[29] which described the payments as being for a funeral. However, the applicant says that when the matter came before the master, and then the Court of Appeal, the executors gave a different story and said that there was no funeral, only a private memorial. The applicant also refers to the Court of Appeal making this factual finding.[30] The applicant's case is that if the service was a private memorial service only, and there was no duty on the executors to hold the memorial service, then the executors were not entitled to pay for that service out of the estate.[31] The applicant is seeking the sum of $1,712.37 being her one quarter share (as a residuary beneficiary) of the money spent on that service.

   [29] Affidavit of Angela Cecilia Theresa Frigger sworn 22 September 2023, AF6.

   [30] ts 4 - 5.

   [31] ts 7 - 8, 14.

6. In relation to the quantification of this amount, the applicant relies on the bank statement provided to her by one of the executors, attached to an email dated 21 April 2021 in which the executor explains how the estate has been finalised. That email explains that each of the residuary beneficiaries will receive the sum of $111,315.05. The applicant says that she has not been provided with receipts relating to the various payments referred to in the bank statement,[32] but says that the following payments may be related to the memorial service and has included each in the quantification of her claim:[33]

   (a)8 February 2021: Remembrance Funerals - $2,680.00;

   (b)16 February 2021: Final Payment - $119.78;

   (c)16 February 2021: Final Payment - $14.88;

   (d)5 March 2021: Metropolitan Cemeteries Board - $1,094.00; and

   (e)6 April 2021: Church, priest fees and wake costs - $1,500.

   [32] ts 17 - 18.

   [33] ts 15 - 17.

7. There is also an additional payment on 4 February 2021 in the amount of $75.84 for 'Elements' which the applicant did not include but says she perhaps should have.[34]

   [34] ts 17.

8. The applicant wrote to the executors seeking payment of $1,712.37, and one of the executors has responded stating that no payment will be made to the applicant as no order to that effect was made by the Court of Appeal.[35]

   [35] Affidavit of Angela Cecilia Theresa Frigger sworn 22 September 2023, AF4 and AF5.

9. The applicant also says that the First Originating Summons sought orders pursuant to s 65 of the Trustees Act 1962 (WA) (which concerns deceased estates and claim made after distribution) whereas the Second Originating Summons seeks orders pursuant to s 42 of the Administration Act 1903 (WA) (which concerns a failure by an executor to pay or deliver to any person any bequests, legacy or residuary bequest).[36] However, the applicant accepts that this alone would not mean that the Second Originating Summons was completely different.[37]

   [36] Affidavit of Angela Cecilia Theresa Frigger sworn 22 September 2023 [11].

   [37] ts 3.

10. In these circumstances, the applicant submits that the Second Originating Summons has legal merit, is different from the First Originating Summons and is therefore not frivolous, vexatious, or an abuse of process.

Disposition

1. In relation to the jewellery claim (being par (c) and (d) of the Second Originating Summons), the applicant's case as explained in the written and oral submissions is that the executors should be held to the position they advanced before the Court of Appeal, being that the applicant's daughter collect the jewellery and that the applicant should not have to take the risk or pay the costs of registered post or a courier.

2. There is nothing in the documents before the court that suggests or indicates that the executors are refusing to deliver up the jewellery bequeathed to the applicant and her daughter. The executors have stated how the applicant can arrange to obtain the jewellery, however, the applicant does not wish to collect the jewellery in this manner. Prior to the hearing, the applicant had taken no steps to arrange for collection via registered post or a courier.[38]

   [38] Frigger v Frigger [2023] WASCA 103 [22], [57] - [58]; ts 9 - 10.

3. Section 42 of the Administration Act1903 (WA) refers to an executor (after a written request) neglecting or refusing to deliver a bequest. The section does not provide that an executor must deliver specific bequests to beneficiaries in a manner with which the beneficiary agrees. The applicant did not refer to any legal authorities to that effect, and the court's own research did not uncover any.

4. The Court of Appeal did not conclude that the only way in which the jewellery can be provided is by the applicant's daughter collecting the jewellery. Rather, the Court of Appeal concluded that there was nothing to suggest that the executors had failed in their duties in respect of those items of jewellery that formed part of the estate. I do not consider there is any material difference between the executors asking that the applicant's daughter collect the jewellery or asking that the applicant arrange for registered post or a courier to collect the jewellery. In either case, the executors are not refusing to deliver the jewellery. Rather, this is a case of the applicant not agreeing with the way the executors wish to deliver the jewellery to the beneficiaries.

5. Accordingly, on the facts before me, I am satisfied that the paragraphs of the Second Originating Summons which concern the jewellery are frivolous and vexatious and an abuse of process, in that there is no serious question to be tried and it has no reasonable prospects of success. The applicant's case as set out in the written and oral submissions also appears to be another attempt to litigate what the Court of Appeal described as a 'personal grievance that is entirely without merit and raises no legal issues'. The applicant has already brought proceedings against the same proposed respondents before the master and the Court of Appeal in relation to the jewellery in the will, and the Court of Appeal considered the applicant's case to be without merit. In these circumstances, I also consider that this portion of the Second Originating Summons is an abuse of process as it seeks to engage the court's procedures in a manner that is unjustifiably oppressive to the prospective respondents by requiring them to engage in yet further litigation on this topic and it brings the administration of justice into disrepute.

6. I note that after the hearing, the applicant wrote to the executors on Friday 15 December 2023, wanting to arrange registered post or a courier for less than one week later on a day in the period Wednesday 20 ‑ Friday 22 December 2023. On 21 December 2023, the applicant deposed that she had not received a response to her email. Even taking this additional communication into account, the fact that the applicant had not received a response to this one email does not, without more, suggest that the executors are refusing to deliver up the jewellery. There may be a number of reasons why the executors did not respond to this email including that they may not have seen it (given it was sent on a Friday and the affidavit was sworn on the following Thursday) or that the period in December immediately before Christmas may have been very busy and/or may not have been suitable for them. The original email from the executors advising the applicant that her daughter should be sent to collect the jewellery was sent on 21 April 2021. Sending one letter at some point after 17 July 2023 (which was responded to) and then one email on 15 December 2023 imposing a short deadline of the applicant's choosing immediately prior to the Christmas period does not, without more, suggest that the executors are refusing to deliver the jewellery and does not alter my conclusion regarding these paragraphs of the Second Originating Summons.

7. In relation to the memorial service claim (being par (e) of the Second Originating Summons) the Court of Appeal decision records that in addition to the claim for compensation, there was also a claim by the applicant that the executors pay the applicant the sum of $1,712.37, being a quarter of the costs of the funeral.[39] The Court of Appeal found that the applicant's claim was entirely without merit and was an abuse of process.

   [39] Frigger v Frigger [2023] WASCA 103 [14].

8. This is therefore a case where the applicant has already litigated seeking payment of the sum of $1,712.37 and has been unsuccessful. In the Second Originating Summons the applicant has attempted to re‑cast her claim for this sum and says that it arises from the facts found by the Court of Appeal.[40] However, her claim arises from the same facts and documents that were in existence at the time of the First Originating Process. In terms of documents, the applicant had a copy of the email from one of the executors dated 21 April 2021, which attached the relevant bank statement.[41] In oral submissions, the applicant said that the executors advanced the case that the funeral was a memorial service before the master and the Court of Appeal.[42] Therefore the applicant was aware of this allegation when appearing before the master and later the Court of Appeal. In these circumstances, I consider that this is a case of the applicant attempting to litigate a matter which was either decided as part of the Court of Appeal decision or was a matter which could have been raised by the applicant in the First Originating Summons and ought reasonably to have been raised by the applicant at this time. Accordingly, I consider that par (e) of the Second Originating Summons is an abuse of process as it also seeks to engage the court's procedures in a manner that is unjustifiably oppressive to the prospective respondents by requiring them to engage in yet further litigation on this topic and it brings the administration of justice into disrepute.

   [40] The applicant also relies on the decision of Flower & Hart v White Industries (Qld) Pty Ltd [2001] FCA 370 in this regard, however the facts that of that case are very different to the facts of the present case and therefore I do not consider it assists the applicant's submissions.

   [41] Affidavit of Angela Cecilia Theresa Frigger sworn 22 September 2023, AF6.

   [42] ts 4 - 5.

9. For completeness, I observe that on the basis of the bank statement attached to the applicant's affidavit, it is not clear on what basis the applicant seeks the sum of $1,712.37. Even if all the entries relied on by the applicant were not (as the applicant alleges) amounts the executors were entitled to pay from the estate, the applicant's one quarter share of those payments is only $1,358.62.[43] Further, there is no evidence before the court as to the reason why the applicant alleges that the two payments entitled 'Final Payment' or the payment entitled 'Elements' are either related to the memorial service or are inappropriate to have been paid from the estate. There is nothing in the description of the payments which assists the applicant, and the applicant accepted that she has no receipts for these payments and is not sure what they relate to. Further, it is not clear on what basis the applicant alleges that the payments described as 'Remembrance Funerals' and 'Metropolitan Cemeteries Board' are inappropriate for the executors to have paid out of the estate.[44] It is to be expected that there will have been costs associated with the collection and cremation of the body and undertaking all required legal paperwork.

   [43] Being ¼ share of $5,434.50.

   [44] ts 15 - 16.

10. The only payment which, from the description in the bank statement alone, appears to relate to the memorial service is the payment on 6 April 2021 described as 'Church, priest fees and wake costs' for the amount of $1,500. Even assuming that this payment relates to the memorial service, the fact that the service was a memorial service does not of itself mean that the executors were not entitled to pay for this service from the estate. The answer to this question is one of construction of the terms of the will. The applicant's one quarter share of this payment is only $375. In the context of an estate where the four residuary beneficiaries have already received the sum of $111,315.05 each; where there has been previous litigation by the applicant before the master and the Court of Appeal over the costs of the memorial service which has been dismissed as being without merit and an abuse of process; and given my conclusion above that the applicant could and should reasonably have brought her current claim for the costs of the memorial service in these earlier proceedings, I remain of the view that it is an abuse of process to engage the court's processes for the likely sum of only $375 (or at best $1,358.62) in that the applicant is seeking to engage the court's procedures in a manner that is unjustifiably oppressive to the prospective respondents by requiring them to engage in yet further litigation on this topic over such a small sum, and it brings the administration of justice into disrepute.

11. The remaining paragraphs of the Second Originating Summons only seek orders in support of the substantive claims concerning the jewellery and the costs of the memorial service.

General comments

1. As observed by the Court of Appeal, it is apparent that there is a history of hostility between the applicant and her siblings. This will inevitably affect the extent to which the siblings are able to finalise the administration of their mother's estate.

2. In so far as the jewellery is concerned, it appears that the only outstanding step in finalising the estate is for the jewellery for the applicant and her daughter to be collected by the applicant. The executors have indicated how this may occur. I strongly encourage the applicant and the executors to finalise the collection of the jewellery so that this aspect of Mrs Reid's wishes can implemented. It is not in the interests of the applicant or her siblings, or in the interests of justice more broadly, for there to be any further litigation concerning Mrs Reid's estate.

3. Although they are not parties to this application, I will arrange for the court to provide the executors with a copy of this decision once it is published and draw their attention in particular to this section of the decision.

Conclusion and orders

1. Given my above reasons, I make the following orders:

   1.The notice of originating motion dated 22 September 2023 is dismissed.

   2.There be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CH

Associate to Justice Seaward

16 JANUARY 2024