Re Rules of the Supreme Court 1971 (WA)
[2022] WASC 430
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE MUNGAR [2022] WASC 430
CORAM: STRK J
HEARD: 7 DECEMBER 2022
DELIVERED : 7 DECEMBER 2022
PUBLISHED : 13 DECEMBER 2022
FILE NO/S: CIV 2190 of 2022
EX PARTE
JACQUES PATRICK MUNGAR
Plaintiff
Catchwords:
Practice and procedure - Ex parte application for leave to file an originating motion pursuant to the Rules of the Supreme Court 1971 (WA) O 67 r 5 - By the originating motion the applicant seeks orders against an executor named in a will pursuant to the Non-contentious Probate Rules 1967 (WA) r 33(6) - Caveat lodged by the applicant - No application had been made for a grant of probate by the executor named in the will - Availability of relief pursuant to the Non-contentious Probate Rules 1967 (WA) r 33(6) - Originating motion plainly unsustainable
Legislation:
Administration Act 1903 (WA)
Non-contentious Probate Rules 1967 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | In Person |
Solicitors:
| Plaintiff | : | In Person |
Cases referred to in decision:
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Chapman v Garrigan [2017] WASC 336
City of Kwinana v Lamont [2014] WASCA 112
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303
Middleton v The State Western Australia (1992) 8 WAR 256
Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 (S)
Re City of Stirling; Ex Parte Tallot [2012] WASC 33
Re Ives [2019] WASCA 86
Re Magistrate Francine Walter; Ex Parte Tull [2016] WASC 271
Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213
Richardson v Devine [No 2] [2018] WASC 59
Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
STRK J:
Overview
On 9 May 2022, Marie Blanche Paquerette Mungar died. Marie had four children, Jacques Patrick Mungar (known as Patrick), Jean‑Michel Ghislain Mungar, Anne-Marie Monique Lyons (known as Monique), and Jean‑Marc Daniel Mungar, who pre‑deceased his mother.
In these reasons, I describe the surviving members of the Mungar family by their first names and Marie Mungar as the deceased. I do so for purposes of clarity and convenience. No disrespect is intended.
On 1 June 2022, Patrick presented a caveat to the court claiming an interest as a beneficiary under the will of the deceased. The caveat was allocated the number CAV 62 of 2022. On 22 June 2022, a registrar wrote to Patrick advising him that his caveat was not accepted.[1] Patrick presented another caveat (which was also allocated number CAV 62 of 2022), which was entered on 25 July 2022.[2] For the purposes of the caveat, Patrick described his interest in the estate of the deceased in the following terms:
The ground for lodging the caveat is that a will made by the deceased dated 21 March 2013 was invalid on the grounds that the deceased was subject to undue influence and/or that the will was made in suspicious circumstances.
I have an interest in the estate of the Deceased as the executor appointed by a will made by the Deceased dated 16 September 2007 and as a beneficiary under that will.
There is at present no application before the Court for a grant of probate of any will or letters of administration in relation to the Estate. This caveat is lodged on the authority of Chapman v Garrigan [2017] WASC 337 that '... it is open to a party to lodge a caveat before an application for a grant is made'.
[1] Affidavit of JP Mungar sworn 11 November 2022, PM-3 (page 12).
[2] Affidavit of JP Mungar sworn 11 November 2022, PM-4 (pages 53 - 54).
A review of the court's records reveals that at the time the caveat was entered, no application had been made for a grant of probate or letters of administration in relation to the deceased's estate. At the hearing of this application, I understood this to still be the case.
On 21 October 2022, Patrick presented for filing an originating motion which was allocated matter number CIV 2104 of 2022,[3] together with an affidavit in support of the same.[4] Jean‑Michel was named as the proposed defendant to the originating motion and by that proposed proceeding Patrick sought to move for orders that:
1.The Defendant commence contentious proceedings in relation to the estate of Marie Blanche Paquerette Mungar (Deceased) late of Aegis Stirling, 32 Spencer Avenue, Yokine in the state of Western Australia, deceased (Estate) by issuing a writ against the Applicant within 30 days, serving the said writ on the Plaintiff within 14 days thereafter and affidavits of service of the writs within 7 days of service.
2.In the event of the Defendant not complying with these orders, the right of the Respondent in respect of the any will of the Deceased and the Estate wholly cease and the representation of the deceased and the administration of the Estate shall wholly cease.
[3] Affidavit of JP Mungar sworn 11 November 2022, PM-1 (page 4).
[4] Affidavit of JP Mungar sworn 11 November 2022, PM-4 (page 14).
In the proposed originating motion, Patrick summarised the facts relevant to his claim in the following terms:
(a)The Deceased died on 9 May 2022.
(b)The Deceased made a will dated 21 March 2013 (Will).
(c)The Deceased appointed the Defendant to be the executor of the Will.
(d)On 31 June 2022 the Plaintiff lodged a probate caveat No CAV/62/2022 (Caveat) in this Court against any application for probate or administration in relation to the Estate.
(e)The Caveat was accepted by the Court as at 25 July 2022.
(f)The Plaintiff gave notice of the Caveat to the Defendant on 2 August 2022.
(g)The Defendant has not made an application to the Court for an order to remove the Caveat pursuant to section 64 of the Administration Act 1903 (WA) within one month after notice of the entry of the Caveat.
(h)No step has been taken by the Defendant to commence contentious proceedings by issuing a writ against the Plaintiff pursuant to regulation 33(6) of the Non-contentious Probate Rules 1967 (WA).
In the proposed originating motion Patrick further described the grounds for relief pressed in the following terms:
Pursuant to regulation 33(6) of the Non-contentious Probate Rules 1967 (WA), the Plaintiff is entitled to seek orders directing the Defendant to commence contentious proceedings in relation to the Estate by issuing a writ against the Plaintiff and proceeding in the ordinary manner on such terms as the Court thinks fit as:
(a)the Plaintiff has given notice the Caveat to the Defendant on 31 June 2022;
(b)the Defendant has not obtained an order under section 64 of the Administration Act 1903 (WA) for the removal of the Caveat; and
(c)the Defendant has not commenced contentious proceedings by issuing a writ against the Plaintiff within one month after notice of the entry of the Caveat.
On 31 October 2022, a registrar wrote to Patrick and informed him that the proposed originating motion had not been accepted for filing.[5] The registrar noted that the originating motion referred to r 33(6) of the Non‑contentious Probate Rules 1967 (WA), and that Patrick had:
quoted rule 33(5) in support of [his] motion. Rule 33(5) relates to the actions which should have been taken by the applicant for a grant of probate and does not apply to your situation.
No application for probate has been made.
[5] Affidavit of JP Mungar sworn 11 November 2022, PM-2 (page 7).
Patrick has deposed that in error, he formed the view that the decision contained in the registrar's letter of 31 October 2022 was a decision of a registrar made under O 67A of the Rules of the Supreme Court 1971 (WA), and by a letter dated 4 November 2022, he requested that the Principal Registrar refer the decision of the registrar to a Judge or Master.[6] In this regard, I understood that Patrick sought to invoke the Rules of the Supreme Court O 67A r 17.
[6] Affidavit of JP Mungar sworn 11 November 2022 par 5, PM-3 (page 8).
On 10 November 2022, the Principal Registrar referred Patrick to the Rules of the Supreme Court O 67 r 5 and advised him of the correct process to obtain leave to file the originating motion.[7]
[7] Affidavit of JP Mungar sworn 11 November 2022, PM-5 (page 64).
On 11 November 2022, Patrick filed this ex parte motion for leave to issue the proposed originating motion presented for filing on 21 October 2022. The application was heard on 7 December 2022, during the course of which Mr Mungar made oral submissions. He also read his affidavit affirmed on 11 November 2022 filed in support of the application, and relied upon his written submissions filed on 30 November 2022.[8]
[8] ts 2 (7 December 2022).
At the conclusion of the hearing I informed Patrick that his application was refused for reasons that I would publish. My reasons are set out below.
Leave to file or issue the proposed proceeding
The Non‑contentious Probate Rules have effect in relation to the non-contentious or common form probate business of the court.
Rule 3(1) of the Non‑contentious Probate Rules provides that the Rules of the Supreme Court, and the general practice of the court including the course of practice and procedure in chambers apply, so far as may be practicable, to proceedings to which the Non‑contentious Probate Rules relate, but only to the extent that the Administration Act1903 (WA) or the Non‑contentious Probate Rules do not otherwise provide.
The power of the court to refuse a document for filing in the court's non-contentious probate jurisdiction is not provided for in the Non‑contentious Probate Rules, such that by operation of r 3(1), O 67 r 5 of the Rules of the Supreme Court applies. O 67 r 5 provides as follows:
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.
This rule reinforces this court's inherent jurisdiction to protect itself from unwarranted wastage of time and resources, and to avoid the loss that would otherwise be caused to those who are forced to defend actions which lack any substance.[9]
[9] Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312; Re Magistrate Francine Walter; Ex Parte Tull [2016] WASC 271 [3].
Order 67 r 5(1) does not set out any criteria to be applied in determining whether to grant or refuse leave to file or issue a proposed writ. However, it is accepted that a judge should only refuse leave to file or issue the proposed claim if satisfied that the writ would be an abuse of process, or a frivolous or vexatious proceeding.[10]
[10] 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].
What amounts to an abuse of the court's process is insusceptible to a formulation comprising closed categories.[11] Proceedings are likely to constitute an abuse of process if they are clearly foredoomed to fail,[12] or are plainly unsustainable.[13] The remarks of Vaughan J in Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates are also of assistance. At [31], his Honour stated:[14]
An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. So too a matter that is without substance or is fanciful is frivolous. 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. 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. (citations omitted)
[11] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [9].
[12] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393; Re City of Stirling; Ex Parte Tallot [2012] WASC 33 [7].
[13] Perpetual Trustees Victoria Ltd v Allen [23].
[14] A passage which was referred to with approval in Re Ives [2019] WASCA 86 [50].
I am cognisant of the fact that the exercise of a power which denies a potential plaintiff the opportunity to have their matter heard is a power which should not be exercised lightly. I am particularly aware that a court at first instance should be astute not to risk stifling the development of the law by summarily dismissing actions in respect of which there is a reasonable possibility that, in the development of the law, a cause of action may be found to lie.[15]
[15] Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365, 373 ‑ 374; Middleton v The State Western Australia (1992) 8 WAR 256, 264.
The applicant's submissions
In the written submissions filed in advance of the hearing, Patrick described his understanding of the registrar's reason for refusing to accept the proposed originating motion as follows:[16]
[16] Submissions par 12.
a.A person having any interest in an estate in which application is being made for a grant or the sealing of a grant ((my italics), and intending to oppose the application, shall either personally or by his solicitor enter a caveat in the Registry - NCPR r 33(1).
b.Where the applicant for a grant or for the sealing of a grant (my italics) does not obtain an order under section 64 of the Act, he shall, within one month, or such extended time as a Judge or the Registrar may allow after notice of the entry of the caveat, commence contentious proceedings by issuing a writ against the caveator and proceeding in the ordinary manner - NCPR r 33(5).
c.A caveator may, if no step is taken by the executor or applicant for administration within a period of one month after notice of the entry of the caveat, apply to a Judge or the Registrar for an order directing the executor or applicant to proceed with his application; and the Judge or Registrar may make an order upon such terms as he thinks fit (NCPR r 33(6).
d.The executor against who an application may be made pursuant to NCPR r 33(6) must be an executor who is an applicant for a grant of probate.
e.No application for probate has been made by the executor.
f.No application may be made pursuant to NCPR r 33(6).
g.The Originating Motion for Orders Directing Executor to Commence Contentious Proceedings is an abuse of process of the Court, or a frivolous or vexatious proceeding which, pursuant to RSC O 67 r 5(1), the registrar must refuse to file without the leave of a judge or a master first had and obtained by the party seeking to file or issue it.
h.An order directing a defendant to commence contentious proceedings in relation to an estate pursuant to NCPR r 33(6) can only be made against an applicant for a grant of probate and there is no application for a grant of probate on foot. (original emphasis)
At the hearing of the application, two main contentions were pressed.
First, it was Patrick's position that the registrar's analysis (as discerned by Patrick and summarised at [20] above), was flawed and the proposed originating motion should not have been refused for filing on the authority of Master Sanderson's decision in Chapman v Garrigan [2017] WASC 336.[17] In this regard, it was submitted that:
(a)at [6] of Chapman v Garrigan, the learned Master had directly addressed the suggestion that a caveat could only be lodged after an application for a grant of probate had been made; and
(b)the Master had pointed out that r 33 of the Non‑contentious Probate Rules had to be read with s 63 of the Administration Act, which had led to the practice of the court allowing a caveat to be lodged at any time after the death of the deceased.
[17] Submissions par 13.
Patrick further submitted that:[18]
If someone has the right to lodge a caveat prior to an application for a grant of probate being made, it follows that NCPR rules 33(5) and (6) must be interpreted so that 'the applicant for a grant' means an executor named in the will and to allow a caveator to make an application under NCPR r 33(6) even when there is not a prior application for a grant of probate. In Chapman v Garrigan, the executor had chosen to commence contentious proceedings by issuing a writ after a caveat had been entered prior to there being an application for as grant of probate. The executor had done this instead of applying for an order under s 64 of the Administration Act to have the caveat removed.
For the reasons set out in Chapman v Garrigan, the Originating Motion for Executor to Commence Contentious Proceedings is therefore not 'an abuse of the process of the Court or a frivolous or vexatious proceeding' (my italics), whatever interpretation is ascribed to this expression in the context of O 67 r 5(1) RSC.
[18] Submissions pars 17 - 18.
The second contention advanced by Patrick was that even if his promoted construction of the Non‑contentious Probate Rules r 33 was incorrect, the originating motion was not 'an abuse of the process of the Court or a frivolous or vexatious proceeding' and ought be accepted for filing.[19] On the basis of the decision in Chapman v Garrigan, it was submitted that it cannot be said that the originating motion was 'manifestly groundless', or any of the other expressions used in the cases cited by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, that would allow the expression 'abuse of the process of the Court or a frivolous or vexatious proceeding' to be applied and thus warrant a refusal of the originating motion for filing.
[19] Submissions pars 19 - 24.
Disposition
Relevant provisions
The Administration Act, by its long title, is an Act to consolidate and amend the law relating to probate and administration and the duties on the estates of deceased persons and for other purposes. Part IV of the Administration Act concerns caveats, and contains only s 63 and s 64.
Section 63(1) is the source of power for any person to lodge with the Principal Registrar a caveat against any application for probate or letters of administration under the Administration Act, at any time previous to such probate or administration being granted or sealed; and s 63(2) prescribes the information that must be set out in a caveat. Section 64 of the Administration Act is concerned with the removal of a caveat by the court.
As observed above, the Non‑contentious Probate Rules prescribes the procedure for the non-contentious or common form probate business of the court. Relevantly, r 33 of the Non‑contentious Probate Rules concerns caveats and provides as follows:
Caveats
(1)A person having any interest in an estate in which application is being made for a grant or the sealing of a grant, and intending to oppose the application, shall either personally or by his solicitor enter a caveat in the Registry.
(2)A caveat shall be in accordance with Form 3,and shall state fully the nature of the interest of the caveator.
(3)Subject to subrule (4), a caveat shall remain in force for the space of 6 months only from the day it is entered and then expire and be of no effect, unless otherwise ordered.
(4)Notwithstanding that a period of 6 months has elapsed after entry of a caveat, the Registrar may require the applicant for a grant to give notice to the caveator before proceeding with his application.
(5)Where the applicant for a grant or for the sealing of a grant does not obtain an order under section 64 of the [Administration Act 1903 (WA)], he shall, within one month, or such extended time as a Judge or the Registrar may allow after notice of the entry of the caveat, commence contentious proceedings by issuing a writ against the caveator and proceeding in the ordinary manner.
(6)A caveator may, if no step is taken by the executor or applicant for administration within a period of one month after notice of the entry of the caveat, apply to a Judge or the Registrar for an order directing the executor or applicant to proceed with his application; and the Judge or Registrar may make an order upon such terms as he thinks fit.
Rule 33(1) of the Non‑contentious Probate Rules refers to 'a person having any interest in an estate in which an application is being made for a grant or the sealing of a grant' and to 'the application', suggesting that a caveat can only entered at some time after an application for a grant of probate has been made. However, as was observed by Master Sanderson in Chapman v Garrigan, it has been the practice of the court to allow 'a person having an interest in an estate' to lodge a caveat before an application for a grant of probate is made. Patrick's caveat, which referred to the learned Master's decision, was filed in such circumstances.
The practice of the court as to the lodgment of caveats
One might hypothesise that the practice of the court is a practical response to the difficulties faced by an interested party who wishes to ensure that no grant is made without notice. In this court, there are no ready means by which an interested party might monitor the court's records to ascertain when an application for grant has been lodged, and no obligation on an applicant seeking a grant of probate to give notice of the making of the application to persons with an interest in the estate.
Rule 43A of the Non‑contentious Probate Rules permits searches of the court's records to be undertaken and provides as follows:
Searches
Any person shall, on payment of the prescribed fee, be entitled during office hours to search for and obtain a copy of any of the following documents filed or of record in the Registry, namely -
(a) a will or codicil that has been proved;
(b) a grant of probate or administration;
(c) an order to administer; and
(d) with the leave of the Registrar, any other document.
Under r 43A of the Non-contentious Probate Rules, an interested person is not entitled as of right to a copy of any application for grant (such search falling within the scope of r 43A(d)).
The Rules of the Supreme Court O 67B r 6 also concerns access to information and documents in the non-contentious probate jurisdiction of the court and, among other things, contemplates the provision of information as to whether a named person has made a probate application,[20] and access to an originating motion that applies for a grant (as defined in the Non-contentious Probate Rules r 2).[21]
[20] Rules of the Supreme Court O 67B r 6(2), table pt B(1).
[21] Rules of the Supreme Court O 67B r 6(3), table pt C(1).
The reconciliation of r 43A of the Non-contentious Probate Rules with O67B of the Rules of the Supreme Court, is not a matter before me in this application. Under either regime a fee of $56.50 is payable for each search undertaken.[22] There is presently no ability for an interested person to apply to the court for a standing search for lodgment of an application for grant, nor for a grant of representation.[23]
[22] Supreme Court (Fees) Regulations 2002 (WA) sch 3, item 6.
[23] Which facility is available in relation to the issue of a grant in the Family Division of the High Court of England and Wales by Non‑contentious Practice Rules 1987 (UK) SI 1987/2024, r 43, as discussed in D'Costa RR, Teverson P and Synak T, Tristram and Coote's Probate Practice (32nd ed, 2020) [21.11] - [21.15].
I understood Patrick to contend that the practice of the court (which is not easily reconciled with the express language of r 33(1)), described in the learned Master's reasons in Chapman v Garrigan, informs the proper construction of r 33(6), and as a caveator, he is entitled to avail himself of the relief prescribed in r 33(6) as against Jean‑Michel who was named by the deceased as executor in the deceased's latest will but has made no application for grant.
Citations
I also note that r 29 to r 32 of the Non‑contentious Probate Rules concern citations. Citations may be issued in non-contentious probate matters to accept or refuse or to take a grant (r 30); propound a will (r 31); and to bring in a will (r 32).
As to citations to propound a will, any person who becomes aware of the existence of an alleged will which would adversely affect that person's interests under an intestacy or under an earlier will may cite the executors named in it and all persons interested under it to propound it.[24]
[24] Non-contentious Probate Rules r 31(1).
Where the time limited for filing a notification of intention to be heard has expired and no person cited has filed a notification, or where no person who has filed a notification proceeds with reasonable diligence to propound the will, the citor may apply on motion for a grant as if the will were invalid.[25]
Chapman v Garrigan
[25] Non-contentious Probate Rules r 31(2).
As to the decision of the Master in Chapman v Garrigan, I make the following observations.
The learned Master's decision was one which concerned an argument about costs, agitated in circumstances where an action began life as a proceeding by the plaintiff to prove a will in solemn form after the first defendant had lodged a caveat. In the Master's reasons for decision it was recorded that by the time the matter reached court the first defendant, who was responsible for proceedings being issued, the plaintiff and the other defendants had resolved their differences, and no party had any difficulty in probate of the will being granted.[26] There remained only a question as to the appropriate costs order that ought be made in all of the circumstances.
[26] Chapman v Garrigan [1].
The deceased died leaving property situated in Western Australia, and having made a will in which she named the plaintiff as executor. The first defendant was not named as a beneficiary under the will and was not immediately allowed access to a copy of the will. The first defendant lodged a caveat against a grant of probate of the deceased's estate. Among other things, the caveat alleged the will of the deceased to be invalid on the grounds the deceased 'did not have capacity and/or was subject to undue influence or that the will was made in suspicious circumstances'.[27] The caveat was entered by the court in circumstances where no application for grant of probate had been made by the plaintiff as executor or otherwise.
[27] Chapman v Garrigan [2].
The Master recorded in his reasons for decision that once the plaintiff became aware of the existence of the caveat, he issued proceedings seeking proof of the will in solemn form, which upon issue proceeded under the Rules of the Supreme Court O 73.[28] (That is, there was no attempt made by the first defendant to invoke r 33(6) of the Non‑contentious Probate Rules.)
[28] Chapman v Garrigan [15].
It was the plaintiff's contention that a caveat should never have been lodged by the first defendant in the circumstances. Rather, it was submitted on behalf of the plaintiff that some form of action should have been initiated by the first defendant which challenged the will of the deceased. As to this contention, the Master stated:[29]
With respect that approach seems to me to be misconceived. A combination of s 63 of the Administration Act and r 33 gives a person in the position of the first defendant a right to lodge a caveat. The first defendant cannot be criticised for taking that step.
[29] Chapman v Garrigan [10].
In the end, the Master was satisfied that it in all of the circumstances, it was appropriate to order that the costs of the plaintiff's action be paid out of the estate, and there be no order as to costs in relation to the first defendant. In his reasons for decision, the Master made the following observations in relation to the r 33 of the Non‑contentious Probate Rules:
[5]There are a number of points to be made about this rule. First, it allows 'a person having an interest in an estate' to lodge a caveat. However, s 63 of the Administration Act refers to 'any person'. In this case the first defendant did not have an interest in the estate pursuant to the will. Of course if the will was not admitted to probate then he would have had an interest under the provisions of the Administration Act. So the introductory words of sub-rule (1) really have to be read as including a person who may have an interest in an estate.
[6]Second, sub-rule (1) refers to an estate 'in which application is being made'. That suggests a caveat can only be lodged at some time after an application for grant of probate is made. In fact that is not what happens in practice. A party who wishes to lodge a caveat can do so any time after the death of the deceased and any time prior to the grant being made. That would appear to be consistent with s 63. If no application for a grant has been made it is the practice of this court to open a file and note the existence of the caveat. If an application for probate is then made the application is married with the caveat file and a requisition will issue. When the caveat is lodged a check is made of the probate files which have been opened and if a file exists then the caveat is attached to that file, no further steps are taken to advance the grant of probate again a requisition will issue. So despite what the rules seem to indicate it is open to a party to lodge a caveat before an application for a grant is made. That is what was done in this case.
[7]Thirdly, sub-rule (3) seems to anticipate that once a caveat expires the application for a grant can proceed as if the caveat had never been lodged. That of course is subject to the discretion given to the registrar by sub-rule (4). But what is anticipated by sub-rule (4) is simply giving notice to the person who lodged the caveat before proceeding any further with the grant. In practice the registrars consider the application for the grant in the light of the caveat and may determine, based upon what is in the caveat, that an application should be made for proof in solemn form. On the other hand, if the caveat contains little or nothing as to the basis on which it is lodged, the registrar may simply proceed with the grant.
[8]Fourthly, sub-rule (5) provides an alternative course of action to s 64 of the Administration Act. Under s 64 a person applying for probate when given notice of a caveat may apply to have the caveat removed. But if that step is not taken the party applying for probate must seek proof of the will in solemn form.
[9]Fifthly, sub-rule (6) gives a caveator an option of forcing the hand of the party seeking probate. The sub-rule facilitates an action driven by the caveator rather than relying upon the party seeking the grant to take some action.
The learned Master was not called to determine whether sub-rule (6) might be invoked by a caveator against a person named by a deceased as executor but who had made no application for a grant of probate, nor as against a person entitled to apply for a grant of letters of administration but who was not an applicant for administration.
Richardson v Devine [No 2]
In Richardson v Devine [No 2] [2018] WASC 59, a decision which concerned an appeal against a grant of probate that had been made in the court's non-contentious probate jurisdiction despite existence of a caveat, Archer J also had cause to construe r 33 of the Non‑contentious Probate Rules.
In the appeal before her Honour, the parties agreed that if the matters required to be established by r 33 were established, then the court had a discretion whether or not to require the applicant for a grant to proceed, if he or she wished to proceed, by contentious proceedings. The parties however disagreed on what the caveator was required to demonstrate before the discretion was enlivened.
As was recorded at [45] and [46] of the reasons for decision, the appellant had submitted that, to enliven the discretion, the court only need be satisfied that a caveat had been lodged and that no step had been taken by the applicant for the grant within the month following notice of the entry of the caveat, whereas the respondent had submitted that to enliven the discretion, the caveator must show the caveat to not be vexatious, that the opposition to the alleged informal will was based on genuine doubts, and that there were circumstances which the court might regard as warranting some investigation. Justice Archer noted that the respondent appeared to contend that the caveator had to show these matters by affidavit evidence.
In her disposition of the appeal, Archer J agreed with the remarks of Master Sanderson in Chapman v Garrigan at [7] - [9] (which are reproduced above), concluding that:
[57]On its face, r 33(6) simply allows a caveator to force an applicant for probate to comply with r 33(5). On its face, if a caveat has been lodged and no step has been taken by the applicant for the grant within one month after notice of the entry of the caveat, the caveator is not required to prove anything else. There is no warrant for reading into the sub-rule any additional requirements. Construing r 33(6) according to its ordinary meaning does not lead to an absurd result. On the contrary, this construction is consistent with, and promotes, the scheme of r 33 as a whole.
The appeal in Richardson v Devine [No 2] concerned circumstances where the appellant's caveat had been entered after the respondent had filed an application for grant of letters of administration with the alleged informal will attached. Her Honour had no cause to consider whether r 33(6) might be invoked by a caveator where no application for grant had been made.
Findings
Rule 33(1) of the Non‑contentious Probate Rules refers to an estate 'in which an application is being made', suggesting that a caveat can only be lodged at some time after an application for a grant of probate is made. As noted above, in practice, it is open to a party to lodge a caveat before an application for a grant of probate is made. That is what occurred in this case.
As noted by Archer J in Richardson v Devine [No 2] at [52], in City of Kwinana v Lamont [2014] WASCA 112 [47], the Court of Appeal said:
[T]he starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text. The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision. (citations omitted)
In determining the application, I also had regard to and applied the general principles of statutory construction as summarised by the Court of Appeal in Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368 [130], as follows:[30]
The construction of a statute is 'reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy'. Those rules require primary attention to be directed to the text of the relevant provisions. There must be regard to the language of the statutory instrument viewed as a whole, considered in its context. An important part of that context will be the purpose of the legislation, ascertained from what the legislation says (rather than any assumption about the desired or desirable reach or operation of the relevant provisions). Once the purpose of the legislation is established, a construction that would promote that purpose shall be preferred to a construction that would not promote the relevant purpose. (Citations omitted.)
[30] See also Director General of Department of Transport v McKenzie [2016] WASCA 147 [45] - [48].
As was observed by Archer J,[31] I accept that the statutory text of r 33 is plain. Despite the court's pragmatic practice of expanding the scope of r 33(1) so as to allow caveats to be lodged before any application for grant has been made, which is consistent with the right afforded by the Administration Act s 63(1), the construction of r 33(6) promoted by Patrick does not correspond to the meaning of the words of r 33(6).
[31] Richardson v Devine [No 2] [53].
Rule 33(6) empowers a caveator, if no step is taken by the executor or applicant for administration, to apply to a judge or registrar for an order directing the executor or applicant to proceed with his application. When r 33 is read as a whole, it is clear that the reference to 'the executor' in r 33(6) is a reference to 'the executor in an application for a grant of probate'. The language in r 33 can be readily contrasted to that of r 31, which contemplates a citation directed to 'the executors named in the will and to all persons interested under the will'.
Construing r 33(6) according to its ordinary meaning does not lead to an absurd result. Patrick is not left without recourse. He may take steps to have a citation issued. Further, such construction is in no way inconsistent with pt IV of the Administration Act, and is consistent with and promotes the scheme contemplated by the citation provisions of the Non‑contentious Probate Rules.
In his letter to the Principal Registrar dated 4 November 2022, Patrick confirmed that there is no probate application in existence. A search of the court's records on 7 December 2022 revealed the same. Jean‑Michel is not an executor for the purposes of r 33(6). He is an executor named in a will. In circumstances where there is no probate application, Patrick cannot bring an application pursuant to r 33(6) as if Jean‑Michel were an executor who had made an application for the grant of probate. Patrick may however seek the issue of a citation to propound a will under r 31 of the Non‑contentious Probate Rules. Appropriately then, the executors named in the will and all persons interested under it will be cited and given notice of Patrick's contrary interest before he may apply on motion for a grant as if the later will of the deceased was invalid.
Given the words used in r 33(6) and its plain meaning, the application promoted by Patrick by the proposed originating motion was properly refused by a registrar as it cannot possibly succeed. To the extent that the applicant seeks by the proposed originating motion to move for orders pursuant to a provision of the Non‑contentious Probate Rules that is not open to him, it is an abuse.
For these reasons, the application was refused with no order as to costs.
Finally, I make an observation in relation to the relief sought by Patrick in the proposed originating motion by order 2 (which is reproduced at [5] above). The suggestion that r 33(6) might be invoked to extinguish Jean‑Michel's interests in respect of 'any will of the Deceased and the Estate', that is, for example, as a beneficiary named under an earlier will of the deceased's estate, is extraordinary and without precedent. Notwithstanding this, had proposed order 2 been the only issue with the originating motion, it would not have been refused for filing for this issue alone.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AI
Associate to the Honourable Justice Strk
13 DECEMBER 2022
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