TF by next friend LP v BF as executor and trustee of the estate of AF [No 2]
[2025] WASC 376
•9 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: TF by next friend LP -v- BF as executor and trustee of the estate of AF [No 2] [2025] WASC 376
CORAM: TOTTLE J
HEARD: ON THE PAPERS
DELIVERED : 9 SEPTEMBER 2025
FILE NO/S: CIV 1454 of 2019
BETWEEN: TF by next friend LP
Plaintiff
AND
BF as executor and trustee of the estate of AF
First Defendant
CF as executor and trustee of the estate of AF
Second Defendant
DF as executor and trustee of the estate of AF
Third Defendant
BF
Fourth Defendant
CF
Fifth Defendant
DF
Sixth Defendant
Catchwords:
Practice and procedure - Application by person under a disability for access to restricted documents - Application refused - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Antunes Lawyers |
| First Defendant | : | Zilkens |
| Second Defendant | : | Zilkens |
| Third Defendant | : | Zilkens |
| Fourth Defendant | : | Jackson McDonald |
| Fifth Defendant | : | Jackson McDonald |
| Sixth Defendant | : | Jackson McDonald |
Case referred to in decision:
TF by her next friend LP v BF as executor and trustee of the estate of AF [2021] WASC 485
TOTTLE J:
Introduction
On 10 December 2021 I made orders under O 70 r 10 of the Rules of the Supreme Court 1971 (WA) approving settlement of the claim made by the plaintiff (TF) for family provision from the estate of her late mother and related claims made by TF in relation to the administration of various discretionary trusts established by TF's parents. The family provision claim was the subject of these proceedings within which Master Sanderson made an order on 26 August 2019 declaring TF to be a person with a disability and appointing LP as her next friend. LP is a senior and very experienced lawyer practising in Sydney.
On 12 May 2020 the State Administrative Tribunal appointed LP the limited administrator of the estate of TF. The orders made by the State Administrative Tribunal empowered LP to seek legal advice on behalf of TF in relation to all claims concerning the plaintiff's family and related partnerships, trusts, companies and other entities. The order further empowered LP to bring and defend actions, suits and other legal proceedings in the name of TF concerning the above matters and, if appropriate, to settle those matters.
By 10 December 2021 TF's claim in respect of the administration of the trusts had not progressed to the point of issuing proceedings.
The background is explained in more detail in the reasons for approving the settlement that were delivered orally on 10 December 2021 and subsequently provided to the parties in written form.[1]
[1] TF by her next friend LP v BF as executor and trustee of the estate of AF [2021] WASC 485.
The orders made on 10 December 2021 included an order in the following terms:
6.Access to the court file be restricted to the parties
(a)No other persons can access the court file without the leave of a Judge or Master;
(b)Access to LP's affidavit sworn on 9 October 2021 and the Opinion of Independent Counsel dated 3 December 2021 is restricted;
(c)For the purposes of this access order, a reference to the Plaintiff as a party means the Plaintiff by her next friend.
Order 6(c) was made at the request of LP. Put shortly, LP was concerned that if TF had access to the court file, and in particular LP's affidavit and the independent counsel's opinion she would seek to attack the settlement by, in effect, impugning the integrity of LP and those who had assisted her in negotiating the settlement and obtaining the court's approval of it and in so doing TF would damage her own interests.
By letter dated 20 March 2023 addressed to the Principal Registrar TF applied for access to the following documents:
1.All the documents that [LP] lodged with the Supreme Court leading to the approval of her secret settlement on Dec 13, 2021, ordered by the Honourable Justice Tottle.
2.[LP's] original application to the Supreme Court in 2019 asking for Litigation Guardianship or Next Friend, as well as the transcript of the Hearing of Aug 26, 2019, leading to Master Sanderson's order.
3.All invoices that [LP] lodged with the Supreme Court, Cost Assessment, or sent to my daughter, [redacted].
TF stated that the reason for seeking access to the documents was she required them for the purposes of her application to the State Administrative Tribunal to end LP's limited administration of her estate.
Procedural history
A directions hearing was held on 13 April 2023. At that hearing no directions were made but arrangements were made to undertake a comparison of the documents on this court's file and the documents on the State Administrative Tribunal's file (to which TF had access) to establish more precisely those documents which were not otherwise available to TF. In summary the comparison exercise revealed there was a substantial overlap between the documents on the State Administrative Tribunal's file which were in TF's possession or to which she had unrestricted access and the documents on this court's file. The focus of TF's application for access was the affidavit sworn by LP in support of the approval application and the opinion that had been provided by counsel.
On 9 May 2024 I made directions for the filing and service of affidavits and outlines of submissions by the parties who opposed TF's application for access and for TF to file responsive submissions and affidavit evidence and I directed that the access application would be dealt with on the papers.
The fourth defendant swore an affidavit in opposition to the application and an outline of submissions was filed and served on behalf of the fourth, fifth and sixth defendants. LP swore an affidavit in opposition to the application and filed and served submissions.
TF's time for filing and serving affidavit evidence and submissions was extended several times and on 29 August 2025 she provided voluminous submissions and other materials to my associate.
The materials relied on by TF in support of her application are so extensive and detailed such that they cannot sensibly be summarised. The essential points developed by TF are: LP negotiated a settlement of TF's claims that was not in TF's best interests; LP engaged in course of conduct towards TF that was deceitful; TF's alleged incapacity was a fabrication; and the settlement approved by the court was inadequate in the sense that it did not reflect the merit of TF's claims.
Disposition
The following observations may be made.
First, declarations that persons are under a disability and are incapable of managing their affairs in respect of any proceedings to which the declaration relates are not made lightly. In this case on 30 July 2019 TF acknowledged she no longer had 'litigation capacity'. The acknowledgement was made to support the application for a declaration as to incapacity.
The materials put before the court on the application to approve the settlement included a letter dated 5 December 2018 addressed to TF from the solicitors who had acted for her before LP assumed conduct of the proceedings. In that letter the solicitors detailed the considerable difficulties they experienced in taking instructions from TF and providing her with advice. I refer to this evidence to emphasise that LP is not the only lawyer who encountered difficulties in assisting TF. An indication of the nature and extent of those difficulties is provided by the following paragraphs of the 5 December 2018 letter:
8You said that you had to repeat your instructions and information to me because I did not listen to you, but I believe you had to continue to repeat issues because you either didn't take in the advice or reasons why I didn't agree with what you wanted or you simply didn't agree with my opinion and advice.
9.You have made my job near impossible. You tied my hands behind my back and I couldn't do my job properly. One day you would tell me to do something and then the next day you would tell me to stop. You would then never give the instructions to start again but then you would turn around and ask me why it wasn't done. Further, you wanted me to brief counsel but you first wanted to vet who was used and then you never instructed me on who to use. As a result a barrister's opinion was never obtained. You wanted to use me as your mouth piece and not as a lawyer advising you as to the best action and path to take.
10.You have not followed my advice and you have given instructions against my advice.
In her evidence LP described the difficulties that she and counsel instructed by her experienced in obtaining instructions from and advising TF. I am satisfied that TF's inability to give effective instructions to lawyers and to understand the legal advice provided to her was not attributable to interpersonal difficulties but was a consequence of some more profound difficulties on the part of TF.
I have no doubt TF lacked the capacity to manage her claims in 2019 and that remained so up to and including 10 December 2021.
Second, the submissions made by TF in support of the present application manifest at least some of the difficulties that contributed to the making of the declaration that she suffered a disability and are an indication of an ongoing lack of capacity. The very lengthy submissions (over 418 pages) are replete with extravagant allegations of impropriety on the part of LP and the fourth defendant. Further, TF alleges her daughter has colluded with LP. The submissions do not engage however with the weaknesses in her claims as touched upon in my reasons for approving the settlement. The submissions demonstrate TF's tendency to become so focussed on details (many of which are of historic interest only) that she is unable to address the critical issues with any coherence or cogency. Expressed colloquially and respectfully she is unable to see the wood for the trees.
Third, it is clear from TF's submissions that she feels she has suffered a significant injustice and wishes to challenge the settlement approved by the court. While TF states, in effect, that she will obtain legal advice about the settlement and about her rights in respect of LP, I am satisfied she lacks the capacity to instruct lawyers effectively and she is unable to make an objective assessment of any advice she might receive.
Fourth, the declaration that TF was a person under a disability and the later approval by the court of the settlement were steps taken by the court in the exercise of its protective jurisdiction. In this case a very significant consideration was the protection of TF's interests by achieving a settlement of claims that were, at best, weak. The settlement protected TF by shielding her from the very significant risk of incurring a substantial liability for legal costs by pursuing futile litigation. One may understand the frustration felt by TF flowing from the denial of personal autonomy inherent in being declared a person under a disability. That said, the declaration as to TF's incapacity remains in force. In my judgment on the materials put before the court, it is clear that the declaration remains necessary for TF's protection. Granting TF access to the documents would be an abrogation of the court's protective jurisdiction.
Fifth, I am satisfied there is no remotely arguable basis upon which the settlement approved by the court can be challenged and set aside. Granting TF access to the documents would encourage her to the view that setting the settlement aside was a realistic possibility. It is not.
I appreciate TF may not accept this but I have no doubt the settlement approved by the court was overwhelmingly in her best interests. As I have said, objectively, her claims were weak. Had TF pursued those claims the likely result would have been that the claims would have been dismissed. In those circumstances she would have been liable for her own costs and the costs of the other parties. The costs liability would have been substantial.
In the light of the observations set out above TF's application must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to the Honourable Justice Tottle
9 SEPTEMBER 2025
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