Woodley v Woodley - [2018] WASCA 149

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WOODLEY -v- WOODLEY [2018] WASCA 149
CORAM:   MURPHY JA
MITCHELL JA
BEECH JA

HEARD:   6 AUGUST 2018
DELIVERED          :   30 AUGUST 2018
FILE NO/S:   CACV 46 of 2017
BETWEEN:   TERRY RAY WOODLEY
Appellant
AND
ROSS MAXWELL WOODLEY
First Respondent
RAYMOND THOMAS WOODLEY
Second Respondent
WAYNE CHARLES WOODLEY
Third Respondent
ANN CHERYL LEWIS
Fourth Respondent
ROSLYN PATRICIA WOODLEY
Fifth Respondent
KIM REBECCA WOODLEY
Sixth Respondent
ANGELA WOODLEY
Seventh Respondent
NATALIE CHANTELLE BIRCH
Eighth Respondent
MORGAN LEE WOODLEY
Ninth Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   PRITCHARD J
Citation: WOODLEY -v- WOODLEY [No 2] [2017] WASC 94
File Number            :   CIV 1821 of 2013

Catchwords:

Courts and judges - procedural fairness - whether judge failed to afford procedural fairness to self represented litigant

Wills and probate - passing over of executor - whether judge erred in refusing to pass over two named executors - whether judge erred in passing over one of the named executors - turns on own facts

Legislation:

Nil

Result:

Appeal dismissed
Application to adduce additional evidence dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
First Respondent	:	Mr P G Donovan & Ms H J Burnside
Second Respondent	:	No appearance
Third Respondent	:	No appearance
Fourth Respondent	:	No appearance
Fifth Respondent	:	Mr P G Donovan & Ms H J Burnside
Sixth Respondent	:	No appearance
Seventh Respondent	:	No appearance
Eighth Respondent	:	No appearance
Ninth Respondent	:	No appearance

Solicitors:

Appellant	:	In Person
First Respondent	:	MDS Legal
Second Respondent	:	No appearance
Third Respondent	:	No appearance
Fourth Respondent	:	No appearance
Fifth Respondent	:	MDS Legal
Sixth Respondent	:	No appearance
Seventh Respondent	:	No appearance
Eighth Respondent	:	No appearance
Ninth Respondent	:	No appearance

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

Frank Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
Nobarani v Mariconte [2018] HCA 36
Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1
RCR Tomlinson Ltd v Russell [2017] WASCA 129
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Saunders v The Public Trustee [2015] WASCA 203
Stone v Braun [2015] WASCA 103
Ugle v The State of Western Australia [2018] WASCA 97
University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491
Woodley v Woodley [No 2] [2017] WASC 94

JUDGMENT OF THE COURT:

Introduction

Mr Thomas and Mrs Shirley Woodley were farmers. They had five children. Both Mr and Mrs Woodley have died. Regrettably, since their parents' deaths, the children have been in dispute over many matters relating to their parents' estates.
This appeal concerns the question of who should be the executor of the will of the estate of Mrs Shirley Woodley. The appellant, Terry,[1] brought proceedings in the Supreme Court seeking orders pronouncing the validity of a will, granting probate of that will to him as sole executor and trustee, and passing over the first and second respondents as executors. Some of the respondents brought a counter‑claim for orders pronouncing the force and validity of a different will, granting probate of that will to the first and second respondents, and passing over Terry as executor.
[1] Like the parties and like the primary judge, we will refer to all parties by their first name for convenience and without intending any disrespect.
Terry appeals against the decision of the primary judge,[2] which dismissed his claim and upheld the respondents' counter‑claim, granting the first and second respondents probate in respect of the amended will and passing over Terry as executor of that will.
[2] Woodley v Woodley [No 2] [2017] WASC 94 (primary reasons).
For the reasons that follow, we would dismiss the appeal.

Background facts

Shirley and Thomas had five children (the siblings): Terry and the first to fourth respondents, namely Ross, Ray, Wayne and Ann.[3]
[3] Primary reasons [1].
On 30 May 1997, Shirley made a will (the original will) which appointed Terry, Ross and Ray as executors (the executors) of her estate (the estate).[4] Specific gifts were made (the original gifts), including of a property in Halls Head to Wayne (the Mandurah property).[5] The residue of the estate was left to the executors, on trust, for the purpose of establishing a testamentary trust (the testamentary trust). The testamentary trust was to operate as a family discretionary trust for the benefit of the siblings, their spouses or partners, and their children.[6] The executors were to be the trustees of the testamentary trust and all of the siblings were to be guardians of it.[7] The residue of the estate included three vacant lots in Waroona and items of lesser value, including a car, a boat, jewellery, personal effects and some cash.[8] As seen below, there has been considerable dispute between the siblings over whether the residue of the estate held any additional assets.
[4] Primary reasons [2].
[5] Primary reasons [2], [59].
[6] Primary reasons [2].
[7] Primary reasons [2].
[8] Primary reasons [58] - [59].
Shirley made subsequent unwitnessed handwritten amendments on a copy of the original will (the amended will) on one or more occasions.[9] Those amendments related to one of the original gifts and bequeathed additional specific gifts.[10] The remainder of the provisions of the original will were unchanged in the amended will, including the appointment of the executors.[11]
[9] Primary reasons [3], [27].
[10] Primary reasons [3].
[11] Primary reasons [3].
Thomas died on 9 January 2010.[12] Shirley died on 31 July 2011.[13] Shirley's will was read on 28 September 2011.[14] A dispute between the siblings as to the assets and liabilities of the estate ensued. That dispute continues.
[12] Primary reasons [1].
[13] Primary reasons [1].
[14] Primary reasons [82].
Terry claimed, including at trial, that, in addition to the property already outlined, the estate encompassed the following:
1.Interests in a number of properties that Shirley and Thomas once owned, but which, at the time of their deaths, were registered in the names of other siblings:[15]
[15] Primary reasons [61] ‑ [63], [82].
(a)Land in Waroona registered in Wayne's name (the Fitzpatrick Street units).
(b)Two parcels of land in Waroona (the Paterson Road blocks), registered in the names of Shirley's grandsons, Morgan and Nathan.
(c)Two parcels of land registered in Ross's name (the Coronation Road property and Camarri's farm) and subsequently sold by him.
2.Loans owed to the estate by various siblings or their related entities, being:
(a)$60,000 owed by Ray.[16]
(b)$100,000 owed by a company owned by Wayne, Tracenia Nominees Pty Ltd (Tracenia Nominees), pursuant to two $50,000 loans (the Tracenia Nominees loans).[17]
(c)An amount owed by Ross, over and above the $125,000 (plus interest) which he had admitted to owing.[18]
[16] Primary reasons [64].
[17] Primary reasons [64].
[18] Primary reasons [58], [60].
Ross and the fifth respondent, his wife Roslyn, claimed that Terry owed a debt of $48,016 (plus interest) in respect of a loan made to him by Thomas and Shirley.[19]
[19] Primary reasons [65].
Several of these claims by Terry were (and are) the subject of separate proceedings in the General Division of this court. The existence of the disputes between the parties as to the estate's assets was (and is) of significance to the dispute as to who should be the executor of Shirley's will.

The claims of the parties in the primary proceedings

Terry commenced an action in the Supreme Court against the other siblings and the other named beneficiaries under the original will and the amended will,[20] being the fifth to ninth respondents. He sought orders:
1.pronouncing the force and validity of the original will;
2.granting probate of the original will to him as sole executor and trustee of the estate and testamentary trust; and
3.passing over Ross and Ray as executors of the estate and trustees of the testamentary trust.[21]
[20] Primary reasons [6].
[21] Primary reasons [6]; Blue AB 143.
Ross and Roslyn, who were the only defendants to actively participate in the action, counterclaimed seeking orders:
1.pronouncing the force and validity of the amended will;
2.granting probate of the amended will to Ross and Ray; and
3.passing over Terry as an executor of the amended will and as trustee of the testamentary trust.[22]
[22] Primary reasons [7]; Blue AB 171 ‑ 172.
Alternatively, Ross and Roslyn sought an order that an independent administrator and trustee be appointed to administer the estate and to be the sole trustee of the testamentary trust.[23]
[23] Primary reasons [7]; Blue AB 172.

The primary judge's reasons: overview

The judge's reasons were detailed, spanning more than 400 paragraphs. Given the nature and scope of the grounds of appeal, it is not necessary to provide a detailed summary of all aspects of her Honour's comprehensive and careful reasons.

Findings about evidence and credibility

The parties sought to adduce a considerable amount of evidence at trial.[24] Three objections hearings preceded the trial, taking place on 31 March, 19 May and 26 May 2016. In these objections hearings, exchanges touched on the extent to which resolving disputes as to estate assets was necessary to determining the issues at trial. As discussed below, these exchanges are relevant to grounds 1 ‑ 4.
[24] Primary reasons [10] - [14].
Terry tendered a witness statement constituting his evidence‑in‑chief.[25] He was cross‑examined by counsel for Ross and Roslyn.[26] The judge observed that Terry did not impress as a witness, being aggressive, belligerent and emotional.[27] Her Honour considered that he demonstrated a tendency to gloss over evidence which was inconsistent with his own views, or to exaggerate aspects of his evidence, to bolster his own case.[28] For these reasons, the judge approached Terry's evidence with some caution and generally did not rely on his evidence unless it was corroborated by other evidence.[29] Terry challenges this adverse credibility finding in ground 8.
[25] Primary reasons [10]; Exhibit 2.
[26] Primary reasons [10].
[27] Primary reasons [15].
[28] Primary reasons [15].
[29] Primary reasons [15].
Terry also tendered a witness statement in reply in response to the evidence of Ross, Roslyn, Ray and Wayne.[30] The judge provisionally admitted the statement in reply into evidence, on the basis that she would determine the weight to be given to its contents within her reasons.[31] In her reasons, her Honour found that the witness statement in reply was so replete with objectionable material that the balance could not be separated out.[32] Therefore, her Honour ultimately concluded that the witness statement in reply should be given no weight.[33] This approach and its conclusion are challenged by ground 2.

Disposition of the issues at trial

[30] Primary reasons [11].

[31] ts 649 - 650; Primary reasons [11].

[32] Primary reasons [11].

[33] Primary reasons [11].

Notwithstanding that it did not comply with the formal requirements of s 8 of the Wills Act 1970 (WA),[34] the judge found that under s 32 of that Act she had jurisdiction to, and should, grant probate in respect of the amended will because she was satisfied that Shirley intended it to constitute her will.[35] There is no challenge to this conclusion. In this appeal, Terry challenges the findings as to who should be executor of the will, not the findings as to which will should be admitted to probate.[36]
[34] Primary reasons [29].
[35] Primary reasons [30] - [31], [35] - [42].
[36] Appeal ts 2.
The judge then turned to the claims for orders to pass over certain of the siblings as executors of the amended will. There is no challenge to her Honour's comprehensive outline of the relevant principles.[37]

Whether Ross should have been passed over

[37] Primary reasons [43] - [57].

Her Honour summarised Terry's allegations as to why Ross (1) should be passed over as executor and trustee of the estate as unsuitable or incompetent; and (2) could not fulfil the duties of executor and trustee of the testamentary trust objectively, impartially and fairly without a conflict of interest, as follows:[38]
[38] Primary reasons [68].
1.Ross had failed or refused to disclose the full extent of his indebtedness to Shirley, provide information of that indebtedness to Terry or account for that indebtedness to the estate.
2.Ross had delayed the proper investigation and administration of the estate in only recently disclosing an additional liability to the estate, being a $75,000 loan paid by Thomas to Markim Holdings Pty Ltd as Trustee for the Woodley Unit Trust trading as a company associated with Ross and Roslyn.
3.Ross was in a position to 'unduly influence' Shirley when she transferred the interest she held as a joint tenant in the Coronation Road property to him.
4.Prior to its transfer to him, and without authority, Ross had offered the Coronation Road property for sale to Ann and her sons, Greg and Bradley Lewis, receiving $500,000 in exchange.
5.Ross had failed or refused to account for taken or sold stock and assets belonging to Shirley or Terry, which were on the Coronation Road property at the date of Thomas's death.
6.Ross had failed to acknowledge the interest and entitlement of the estate in the proceeds of Camarri's farm.
7.At a meeting of the executors on 20 October 2011 (the executors' meeting), Ross attempted to influence him to agree to a statement of assets and liabilities for the estate which did not reflect what he considered to be the true position of the estate. In particular, Terry alleged that Ross failed to disclose as assets of the estate: (1) interests of Shirley and Thomas in the Fitzpatrick Street units; and (2) the Tracenia Nominees loans. Aspects of her Honour's reasoning in these respects are challenged by grounds 5 and 6, respectively.
8.Ross failed to consent to the production of the original will to him upon his request.
9.There was animosity and disagreement between himself and Ross which would prevent them from working together to administer the estate or act as the trustees of the testamentary trust.
10.Following the reading of the will, Ross's son made threatening phone calls and sent threatening text messages to him.
11.Ross was unsuitable because of his age, health and lack of education and experience to properly carry out the role of an executor and a trustee of the testamentary trust. One aspect of this allegation, which arose in cross-examination, was that Ross lacked the requisite knowledge to act as executor because of his mistaken understanding that Wayne (rather than Tracenia Nominees) owned a block of land next to the Mandurah property (26 Janis Street).[39] Ground 7 challenges one of the judge's findings on this point, as explained below.
12.Ross was unsuitable because he was late in filing and serving his defence and counterclaim.
[39] Primary reasons [263].
Her Honour concluded that none of those allegations supported the conclusion that Ross should be passed over as executor of Shirley's will.[40] Her Honour then made detailed findings and gave detailed reasons in relation to each of these 12 allegations.[41] The very limited aspects of these detailed reasons that are challenged on appeal have already been noted. The remaining aspects are not challenged.

Whether Ray should have been passed over

[40] Primary reasons [69].

[41] Primary reasons [70] ‑ [264].

Her Honour summarised Terry's allegations as to why Ray should be passed over as executor and trustee of the estate as unsuitable or incompetent, as follows:[42]
1.Ray had assaulted and injured Thomas in December 1999 and thereafter had little contact with Shirley.
2.Ray had failed or refused to disclose the full extent of his indebtedness to Shirley or account for that indebtedness to the estate.
3.At the executors' meeting, Ray attempted to influence him to agree to a statement of assets and liabilities for the estate which did not reflect what he considered to be the true position of the estate. In particular, Terry alleged that Ray failed to disclose as assets of the estate: (1) interests of Shirley and Thomas in the Fitzpatrick Street units; and (2) the Tracenia Nominees loans.
4.Ray had a conflict of interest in relation to a claim which he intended to make on behalf of the estate against Ray's sons, Nathan and Morgan, in respect of the Paterson Road blocks.
5.Ray had used, and caused damage to, the Mandurah property.
[42] Primary reasons [266].
Again, her Honour made detailed findings and gave detailed reasons for concluding that none of these five allegations supported the conclusion that Ray should be passed over as executor of Shirley's will.[43] Grounds 5, 6 and 7 challenge the same three aspects in relation to Ray as those outlined above in relation to Ross.

Whether Terry should have been passed over

[43] Primary reasons [267] ‑ [349].

The judge then considered Ross and Roslyn's claim that Terry should be passed over as an executor and trustee. Her Honour found that Terry should be passed over, on the following four grounds:[44]
1.Terry's relationships with Ross, Ray and Wayne were so bitter and acrimonious that he would be unable to objectively and dispassionately carry out the role of executor and trustee.
2.Terry's conduct had demonstrated that he did not understand the role of an executor in carrying out a testator's testamentary intentions and that he would not properly carry out the role of an executor of Shirley's will.
3.Terry was incapable of independently, objectively and impartially assessing whether the estate had any claim against Ross, Ray, Wayne, Nathan and Morgan. Ground 4 challenges this aspect insofar as it is based on the Coronation Road property.
4.Terry stood in a position of conflict between his own interests and the interests of the estate.

Whether an independent third party should have been appointed administrator and trustee

[44] Primary reasons [360] - [413], [422].

Finally, her Honour considered whether all executors should be passed over and, instead, an independent third party appointed as the administrator of Shirley's will and the trustee of the testamentary trust.[45] Her Honour concluded that it would be inappropriate to do so for the following three reasons:[46]
1.Terry had not established any basis for passing over Ross and Ray as executors.
2.It was not in the best interests of the beneficiaries, given the apparent modest value of the assets of the estate and the litigation in which the administrator would, and was likely to, become involved.
3.The executors were to act as the trustees of the testamentary trust and it was not desirable to involve a third party in its administration as it was intended to operate as a discretionary family trust.
[45] Primary reasons [423] - [425].
[46] Primary reasons [425].
There is no challenge on appeal to this conclusion.
The judge made orders in the terms sought by Ross and Roslyn, summarised at [13] above.

Grounds of appeal

The grounds of appeal are in the following terms:
GROUNDS OF APPEAL
1The appellant was denied procedural fairness when [the primary judge] made an error of law and fact by not correcting his mistaken belief about what matters were in issue after her Honour realised that the Appellant held that belief.
2The Appellant was denied procedural fairness when [the primary judge] made and [sic] error of law by not offering him the opportunity to amend his witness statement or witness statement in reply and by giving his witness statement in reply no weight.
3The Appellant was denied procedural fairness when [the primary judge] made an error of law by not offering the Appellant the opportunity to apply for more time during trial to put his case and also by reducing the time allocated to [the] trial.
4[The primary judge] made an error of law and fact because her decision was unsafe in that her decision to pass over the Appellant as an executor was partly based on her Honour's view of the dispute over the Coronation Road property, a dispute that was before another court.
5[The primary judge] made an error of fact in finding that Ross and Raymond Woodley do not have a conflict of interest and had acted in a way that does not support their passing over as executors by their unwillingness to pursue a potential claim of the estate on the [Fitzpatrick Street units].
6[The primary judge] made an error of law and fact when her Honour found that Ross and Raymond Woodley did not have a conflict of interest and had acted in a way that does not support their passing over as executors by their unwillingness to pursue a potential claim of the estate on Wayne Woodley despite there being sufficient evidence of that potential claim.
7[The primary judge] made an error of law and fact when her Honour found that Ross and Raymond Woodley did not have a conflict of interest and had acted in a way that did not support their passing over as executors by their unwillingness to pursue a potential claim of the estate on the property at 26 Janis Street despite there being sufficient evidence of that potential claim.
8[The primary judge] made an error of fact about the credibility of Terry Woodley when her Honour decided not to rely on his evidence unless it was corroborated.

The pre‑trial hearings

The trial of this action occurred over five days, commencing on 13 June 2016. Prior to the trial, there were three hearings to resolve objections made by the parties to evidence contained in witness statements. Ground 1 complains that the judge's conduct in these pre‑trial hearings gave rise to a breach of the requirements of procedural fairness. Grounds 1 ‑ 3, and the submissions in support of those grounds, require a detailed outline of some aspects of what occurred at the pre‑trial hearings. The following includes substantially all of the passages upon which Terry relies in support of grounds 1 ‑ 3.

The hearing on 31 March 2016

This hearing concerned the defendants' (respondents') objections to parts of witness statements upon which Terry relied, including his own witness statement, which was dated 3 February 2016.[47]
[47] The witness statement which ultimately became exhibit 2 was dated 13 June 2016.
Consideration of the defendants' objections to Terry's witness statement began with par 7 which asserted that Thomas had made statements to Terry as to the Coronation Road property. The exchange proceeded as follows, upon portions of which Terry relies in support of ground 1:[48]
[48] ts 229 ‑ 235.
PRITCHARD J:   The witness statement of Terry Ray Woodley of 3 February 2016 and your first objection is to paragraph 7.
CUERDEN, MR:   Now, can I put it - there is the hearsay objection, but can I deal with the question of relevance in this way?
PRITCHARD J:   Yes.
CUERDEN, MR:   This concerns an issue that Mr Terry Woodley is agitating here, but more importantly perhaps in some other proceedings in this court that have been case managed by Beech J in which he claims an interest in the Coronation Road property or, as he has called it here, "the river block Coronation Road property". What is relevant, we say, in these proceedings is the fact of there being a dispute that is being litigated in other proceedings because the fact of that dispute may - we don't say it does, but may - potentially be relevant to your Honour's determination of the issues in question. Ultimately, we will say it's not, but we can see why Mr Woodley says it is. But what is not relevant is an inquiry in these proceedings into the merits of Mr Woodley's claim to an interest in the Coronation Road property because that is the issue in the other proceedings and it will be a massive distraction in these proceedings and, ultimately, utterly irrelevant.
PRITCHARD J:   Do you say there's - well, I will rephrase the question. What do you say is the extent of the dispute that the court can resolve in these proceedings in relation to the Coronation Road property? Is it anything more than that; as you've just described, there is a dispute in relation to whether that property forms part of the estate?
CUERDEN, MR:   Yes.
PRITCHARD J:   And is there any dispute on the pleadings as to whether there is a dispute about that? Is the answer to the last question there is no dispute on the pleadings; everyone accepts there's a dispute?
CUERDEN, MR:   Precisely.
PRITCHARD J:   It is being litigated before Beech J. Do you say that the court could properly do anything more in the present proceedings about determining anything with the details of that, other than that in relation to that particular land there, there's a dispute about ownership?
CUERDEN, MR:   It's precisely that. It's common ground in these proceedings that there is a - that there is a dispute being litigated in those other proceedings and we say in these proceedings the court can and should do no more than recognise the existence of that dispute, but it can't resolve - it can't resolve - the dispute. So the way your Honour has put it is, with respect, correct. So that's the objection on relevance to paragraph 7. We also say it's hearsay, of course, and conclusionary. That's probably all I want to say on paragraph 7, your Honour.
PRITCHARD J:   Right. Mr Woodley?
WOODLEY, MR:   The matter has been adjourned before Beech J until after 30 June because Beech J and an application by myself to join the Public Trustee came up with the conclusion that section 35 of the Administration Act - - -
PRITCHARD J:   I don't need to go into any of that now. The question I put to Mr Cuerden I now put to you. On the pleadings, you say the Coronation Road property effectively is - - -
WOODLEY, MR:   Is a disputed property.
PRITCHARD J:   Well, is an asset of the estate.
WOODLEY, MR:   Yes.
PRITCHARD J:   It's clear that the first defendant doesn't agree with that. It's clear that there's a dispute about that.
WOODLEY, MR:   Yes.
PRITCHARD J:   That dispute is being litigated before Beech J. What do you say that this court could properly determine beyond those facts that I've just outlined as between you - and this is relevant to the question of who should be the executor - whether there should be a passing over of the defendants here.
WOODLEY, MR:   It's just - just - - -
PRITCHARD J:   You say - you say - there's a dispute about that property and the first defendant can't properly carry out the role of an executor because of a conflict of interest or because he hasn't been frank about the assets of the estate because he has not disclosed, so far, the Coronation Road property and it is one. In relation to the dispute about the property - - -
WOODLEY, MR:   Yes, just the fact that - - -
PRITCHARD J:   - - - there's no dispute. It's agreed there is a dispute.
WOODLEY, MR:   But the first and the fifth defendant do not agree that it's any part of the estate assets.
PRITCHARD J:   No, they don't. No, that's right.
WOODLEY, MR:   Full stop.
PRITCHARD J:   There's clearly a dispute about that. It's being litigated somewhere - - -
WOODLEY, MR:   Yes. So that's a ground of conflict.
PRITCHARD J:   - - - and what more can I - what more do I need to determine about that? That's, effectively, admitted on the pleading, Mr Woodley.
WOODLEY, MR:   Well, if the other side admits that there is a dispute and potentially it could be a estate asset, then that's the end of the matter.
PRITCHARD J:   Well, they admit that there's a dispute that's being litigated. I couldn't decide anything more than that, could I?
WOODLEY, MR:   Well - - -
PRITCHARD J:   These proceedings are not about whether the Coronation Road property is part of the assets of the estate. The present proceedings are about whether the executor should be passed over, any or all of them.
WOODLEY, MR:   Well, that's going to apply to nearly all of the assets of the estate then if we apply that same brush broadly across the estate.
PRITCHARD J:   Let's just focus on Coronation Road.
WOODLEY, MR:   Yes.
PRITCHARD J:   This is all this evidence pertains to.
WOODLEY, MR:   Yes.
PRITCHARD J:   Do you accept that on the pleadings there's no dispute that there is a dispute about who owns the Coronation Road proceedings; that is, whether they're the property of the estate?
WOODLEY, MR:   That's correct.
PRITCHARD J:   How does the content of your evidence at paragraph 7 - how is it relevant then to any issue in dispute in the proceeding?
WOODLEY, MR:   Well, it supports my position - - -
PRITCHARD J:   That what?
WOODLEY, MR:   - - - that it should be a estate asset.
PRITCHARD J:   I understand that submission.
WOODLEY, MR:   I mean that - and that's - that's all that it's there for. It's not to go beyond that point. Anything in relation to the farm that has been said by myself in my statement or any of the other witnesses is only to support the position that the farm should be considered partly or wholly an estate asset. And full stop. I can't go any further than that.
PRITCHARD J:   That's what - I understand the submission. Thank you very much. Having heard the submissions of the parties, in my view, the disputed part of paragraph 7, which commences with the words, as I understand it, "on a number of occasions" through to the end of that paragraph will not be permitted to be adduced in evidence on the basis that it is irrelevant. The basis for that conclusion on my part is, as will be apparent for the interchange with counsel, that there is no dispute on the pleadings, as I understand them, between the parties as to the existence of a dispute in relation to the Coronation Road property and in relation to whether that property is part of the assets of the estate. There is no dispute about the existence of that dispute. Contrary to the plaintiff's understanding of what these proceedings can properly determine, these proceedings, in my view, cannot determine the - or cannot resolve that dispute. These proceedings are for the purpose of resolving whether the executor should be passed over. I can really do no more than acknowledge that one possible consideration relevant to whether executor should be passed over will be the attitude in relation to that, the existence of that dispute. For that reason, it's not necessary to go further and consider questions in relation to hearsay or conclusionary objections. I will rely on the irrelevance objection only.
WOODLEY, MR:   Your Honour, I have no misunderstanding about the fact that we're only here about the executorship and the will, the proving of the will. The comments about any of the estate assets are only there to support the position that the first and the fifth defendant are unwilling to acknowledge their existence. So if the other side wants to make a broad statement that they acknowledge the fact that these assets are in dispute - one, two, three, four five - then that could most probably resolve a lot of these issues and we can move on quicker.
PRITCHARD J:   Well, Mr Woodley, I invite you to have a look at the pleadings - - -
WOODLEY, MR:   The statement - - -
PRITCHARD J:   - - - which is the starting point for - - -
WOODLEY, MR:   - - - of claim and statement of defence, yes.
PRITCHARD J:   - - - and the defence. And if you do that as we go along that may assist you to understand why I'm asking the questions that I am. In relation to the Coronation Road property, for example, which I've already now ruled on in respect of paragraph 7, it was apparent from the defence as it pleaded to relevant paragraphs of your statement of claim that, as I said, there is no dispute about the existence of a dispute as to whether the Coronation Road property forms part of the assets of the estate.
WOODLEY, MR:   Okay.
PRITCHARD J:   Mr Cuerden, paragraph 8.
CUERDEN, MR:   Yes. Your Honour, so the objection is to the words on the last line. Sorry, yes, the last line; the words being: ...which had been promised to me by mum and dad. Now, the reference - the promise referred to is a reference to the smaller 64-hectare farm - - -
PRITCHARD J:   Well, none of which means anything to me, regrettably, but - - -
CUERDEN, MR:   And that's - if one reads - if one looks at paragraph 7, that's a reference to the Coronation Road property because paragraph 7 commences with: The parents owning a 64-hectare farm - which is the coronation Road property. So it's the same property. That's how we read the paragraph. If we're wrong, Mr Woodley will, presumably, tell us. But because this is an assertion about a promise in relation to that same property, so everything I've said I simply adopt the submissions I made in relation to paragraph 7.
PRITCHARD J:   Is that not part of the essence of the dispute that's being dealt with by Beech J; that is, an issue of equitable - an equitable estoppel arising from certain promises made in respect of Coronation Road?
CUERDEN, MR:   That's the basis of the claim, yes.
PRITCHARD J:   Yes.
CUERDEN, MR:   Yes, a proprietary estoppel.
PRITCHARD J:   Thank you.
WOODLEY, MR:   From my side of the fence, your Honour, now that we have spoke about paragraph 7, I think paragraph 8 can be taken out completely. If we acknowledge the fact that the farm is in dispute, well, that's it. A lot of these other paragraphs that mention the farm can just fall by the wayside.
PRITCHARD J:   All right. Well, you then concede the last - the objection in respect of paragraph 8, that last few words?
WOODLEY, MR:   Yes.
PRITCHARD J:   We don't need to get in to the rest of it at this stage.
WOODLEY, MR:   Yes.
PRITCHARD J:   All right. That's conceded. Thank you. So the last words of paragraph 8 commencing 'which had been promised' to the end of the paragraph will not be admitted into evidence. In due course, they will be excluded because they're conceded now the objection is conceded on the grounds of relevance. All right. (emphasis added)
Thereafter, Terry conceded that some further paragraphs in his witness statement would not be relied upon, and the judge ruled that some paragraphs were inadmissible as irrelevant or hearsay.
The judge was evidently at pains to emphasise to Terry the need to focus on the pleadings and upon the identification of the issues in this particular action, as distinct from all of the disputes between the parties. In that respect, the following exchange occurred, to which Terry points in support of ground 1:[49]
PRITCHARD J:   Now, I do want to say again, Mr Woodley, it will be clear to you from what we're doing now - just keep focused on why it is that I'm asking you the questions. I'm always going back to the pleadings and trying to see what the issues in dispute are because, as you know, I'm presently not persuaded that these proceedings are the vehicle to resolve all of the actual disputes that there may be. The question is should the executors be passed over, any or all of them, because of the existence of disputes. Now, on occasion you seek to go further in your pleading and deal with the actual dispute and so on. I'm just wanting to foreshadow that at trial I'm going to be asking you why it is the court needs to go into anything about what the answer to those disputes is or how to resolve those disputes, which is why I keep focusing on how does this particular bit of evidence that's objected to help me to resolve what is actually in dispute on the pleadings.
WOODLEY, MR:   I'm very appreciative, your Honour.
PRITCHARD J:   I don't want you to lose sight of that. … I really want you to focus in your preparation up to trial on what is it the court is going to be able to find and needs to find and needs to find if you're to succeed in having the defendants passed over as executors. All right.
WOODLEY, MR:   It's a very steep learning curve and I'm trying to not get - - -
PRITCHARD J:   I appreciate you're in person. I can't give you any advice about how to deal with the matter, but I do want you to try and focus on what the real issues that I've got to deal with are about.
[49] ts 247 ‑ 248.
Some of the defendants' objections were on grounds of hearsay. In the context of one such objection, the following exchange occurred:[50]
[50] ts 261 ‑ 262.
PRITCHARD J: The reason I've been taking a little time to deal with this, Mr Woodley - I should make this clear - is because I'm very conscious of the fact that you are acting for yourself and it is difficult for in person litigants to deal with the basics of putting evidence in, much less to the details of rules of evidence like exceptions to the hearsay rule, and it's not my job - it's certainly not a proper role for the court to try and assist you to work out if there is one or point you in the direction of one. I'm just trying to hear and understand the basis on which you rely upon these observations - - -
WOODLEY, MR:   I appreciate that, your Honour.
PRITCHARD J:   - - - that you've sought to tender into evidence.
WOODLEY, MR:   Well - - -
PRITCHARD J:   Let me just assist you by reading you a couple of basic statements about the hearsay rule from some evidence books. And this is the rule itself and there are a number of objections to it, but the - here is a current reference to the definition of the hearsay rule from a rules of evidence textbook, Arenson and Bagaric on evidence, the second edition, from - this is just a fairly old one but it's a very well-established rule. It says:
In light of the High Court's decisions in Watt v The Queen, The Queen v Benz, Pollitt v The Queen, it's now settled that implied assertions are caught by the hearsay rule and, thus, it's probably safe to say the most current and widely accepted definition of hearsay is stated as follows: express or implied assertions of persons other than the witness who is testifying, and assertions in documents produced to the court when no witness is testifying, are inadmissible as evidence of the truth of that which was asserted.
Now, this is a classic hearsay because it's an express assertion about what your father said. He's not giving evidence - - -
WOODLEY, MR:   And he can't verify that because he's six foot under.
PRITCHARD J:   I fully appreciate that difficulty and, as I understand it, you want to rely upon this to establish the truth of what was said in that statement, that is, that there was a loan to Raymond of $20,000 at that particular point in time.
WOODLEY, MR:   And the balance of that loan.
PRITCHARD J:   The reason I'm taking the time to tell you about this is, well, I want you to think about this difficulty, about this hearsay objection, in case it arises later on in respect of documentary evidence that you might want to rely upon, or things that might have been written on documents and so on. I can't give you any advice about these things. I'm just alerting you to the existence of possibilities, I suppose.
WOODLEY, MR:   Yes.
The judge then ruled the relevant paragraph to be inadmissible hearsay.[51]
[51] ts 262.
Paragraphs 38, 39 and 40 of Terry's witness statement of 3 February 2016 relayed conversations between Terry and his father about the Fitzpatrick Street units, including about rent paid to Thomas. The defendants' hearsay objections to those paragraphs were upheld.[52]
[52] ts 274 ‑ 275.

Paragraph 41 of the statement said that on occasion Thomas asked Terry to help him at the Fitzpatrick Street units and that on one such occasion he remembered helping Thomas clean up one of the units as the tenants had skipped town. The following exchange occurred in relation to par 41:[53]
[53] ts 276 ‑ 278.
PRITCHARD J:   41.
CUERDEN, MR:   It's irrelevant, in our submission. And can I just say this: that the owner - the registered owner of the units is the third defendant who is - and the issue here is the executors are the first and second defendants, and so the issue in the proceeding is whether - - -
PRITCHARD J:   Whether your clients have behaved inappropriately in failing to acknowledge that, in fact, the Fitzpatrick Street, Waroona properties are assets of the estate.
CUERDEN, MR:   Correct.
PRITCHARD J:   Your clients' case is, well, the registered proprietor is the third defendant so, of course, we don't acknowledge that.
CUERDEN, MR:   Yes. And - - -
PRITCHARD J:   There's a separate dispute about whether, in fact, the units are owned by the estate or otherwise, but the question is whether you've acted inappropriately you say.
CUERDEN, MR:   Improperly, yes.
PRITCHARD J:   That's really the thrust of it.
CUERDEN, MR:   Yes. And so the issue in these proceedings, or an issue in these proceedings, is not whether these units are held on resulting trust for the estate. If appointed executors then there are steps that would need to be taken if there are issues that are raised. So it's in that context that one considers all of these paragraphs, in particular paragraph 41. So we would say that evidence that father helped or the plaintiff helped his father clean out a unit on occasions has absolutely no relevance to the issues in these proceedings.
PRITCHARD J:   Yes.
WOODLEY, MR:   Any property cannot be registered as Fred Bloggs, trustee. It's only ever in the name of the individual person or a corporation, and if it's in the name of an individual to establish a trust you've got to have a trust deed or something like that or a registrar's caveat.
PRITCHARD J:   Just tell me about paragraph 41.
WOODLEY, MR:   Yes.
PRITCHARD J:   The evidence in that is effectively you helped your father clean up a unit in Fitzpatrick Street.
WOODLEY, MR:   Yes.
PRITCHARD J:   What's that going to establish for me?
WOODLEY, MR:   Because my father said to us, "Let's go and clean up my units." So again it's a disputed asset. I certainly wouldn't be doing anything for the third defendant.
PRITCHARD J:   Right. The question here is not about you doing something for the third defendant. Looking at the pleading, the reason why you allege that the first defendant is unsuitable to be the executor of the estate is that he failed to acknowledge the interests of the deceased and your father in the properties in Waroona, Fitzpatrick Street, Waroona.
WOODLEY, MR:   Yes.
PRITCHARD J:   The underlying basis for that assertion is that you consider that those properties are, in fact, owned by the estate - - -
WOODLEY, MR:   Yes.
PRITCHARD J:   - - - or that the estate is somehow beneficially entitled to them.
WOODLEY, MR:   100 per cent entitlement and the interest.
PRITCHARD J:   And as I understand the defence case it is that the registered proprietor is the owner and that is the third defendant.
WOODLEY, MR:   Yes.
PRITCHARD J:   So the first defendant's case is, 'Of course we don't acknowledge that the estate owns the property because the information available to us is that the third defendant is the owner of the property.'
WOODLEY, MR:   And I have said - - -
PRITCHARD J:   Why is it necessary in these proceedings for the court to make any determination about who is the owner of the property and how could I go - do that?
WOODLEY, MR:   It goes to the conduct of the first and fifth because they have made no reasonable inquiry to establish the true ownership, and if in that case - - -
PRITCHARD J:   Do you plead that, that that's the source of the problem why they're not proper executives because they have not made any attempt to ascertain who really owns the property, and, if so, where is that pleading? Because that's really a plea that they're not doing their job as executors properly or wouldn't be able to do it properly based on what they've already done or not done.
CUERDEN, MR:   Of course, we're not executors yet.
PRITCHARD J:   No, that's what I mean, that they wouldn't be able to do it if they were based on what they have or haven't done so far.
WOODLEY, MR:   Well, the counterargument is that the - - -
PRITCHARD J:   No, no. Where is it that you've pleaded it?
WOODLEY, MR:   Yes, I will try and find that, your Honour. The counterargument is that the defendant, the first and fifth defendants, have raised the defence that they are able and willing to accept and make all reasonable enquiry, and I'm disputing that. They will make no inquiry full stop. I know that.
PRITCHARD J:   I was asking you about the relevance of 41 because it's not apparent at all to me that it is relevant to the issues that are in dispute that the court has to resolve.
WOODLEY, MR:   Apart from at this present time it would be 11(b)(ii): The first and second defendant refused to acknowledge the further assets and liabilities.
PRITCHARD J:   Which document are you reading from?
WOODLEY, MR:   My statement of claim.
PRITCHARD J:   Filed 11 September 2015, but dated 16 February 2016?
WOODLEY, MR:   Your Honour, I've got date of document 6 October 2015. I was going to query that date with you before about September. (emphasis added)
It then emerged that Terry was looking at an incorrect version of the pleading. The judge observed that it would not be proper for the court to determine an issue about who actually owns or has the beneficial ownership of the Fitzpatrick Street units.[54] Terry said that he conceded the objection.[55]
[54] ts 283.
[55] ts 283.
Subsequently, the following exchange occurred:[56]
[56] ts 309 ‑ 310.
PRITCHARD J:   Anything you want to say in respect of that, Mr Woodley?
WOODLEY, MR:   Nothing. Just take it out.
PRITCHARD J:   You don't want to rely upon that?
WOODLEY, MR:   No. No. I think I should have adopted the same approach as the defendant and just said, "I'm a great bloke," and that was my statement of claim.
PRITCHARD J:   Mr Woodley, please - - -
WOODLEY, MR:   I'm taking a very negative attitude, your Honour.
PRITCHARD J:   I know. And I - - -
WOODLEY, MR:   Because it's just - - -
PRITCHARD J:   I - - -
WOODLEY, MR:   It's just really getting me down.
PRITCHARD J:   Stop for a moment. Just stop for a moment. I know. Listen to the basis for the objections though and reflect on questions that I've been asking you about. I'm trying to understand your case and I've been asking you to take me to bits of the case. And it's emerged, you will have seen, from our discussion that when - we've looked through what's in there. Some things, I think, that you think are in there are not expressed at all evidently. Things about your mother's general condition or what the first defendant knew about that or otherwise. So you need to reflect on that, I suppose, in terms of your case and what it is you're trying to say. Secondly, you need to be clear about the objections and why they're being allowed in the cases where they have been. In some circumstances, you're conceding the objection or you're indicating you don't want to proceed with the evidence. If that's the case, then that's why the material is not being relied upon. Insofar as there's hearsay, we've been through that.
WOODLEY, MR:   Yes. Yes.
PRITCHARD J:   And you need to point to exceptions to the hearsay rule. That's the way evidence rules work. And finally, in relation to this question of your mother's health, one of the objections is about medical evidence or expertise to say anything about your mother's health. Again, there might be other evidence about that. I don't know. But what we're talking about here is whether you can give that evidence or, as a non-medical person, you can give that evidence. And even if the evidence was to be taken into account, what I would ever be able to make of it if it's just you saying something as vague as, "Mum's health wasn't that good." If I was to find anything, some fact arising from that, I don't know what I would be able to do with it because it's so vague.
WOODLEY, MR:   Well - - -
PRITCHARD J:   So, please - - -
WOODLEY, MR:   Yes.
PRITCHARD J:   I accept that this might feel dispiriting because sometimes it's hard to understand why things are being excluded and otherwise, but please just try and reflect on how this informs what you need to think about in terms of the running of your case. Now, let's turn to the next paragraph[.]
It can be observed from this exchange, that the judge sought to explain, in plain terms, the reasoning behind the rulings her Honour had made.
On a number of occasions during this lengthy hearing, the judge asked Terry to clarify the purpose of leading the evidence to which objection had been taken. On some occasions, it became clear that Terry's purpose in leading particular evidence was an impermissible hearsay purpose, in which cases her Honour ruled accordingly. On other occasions, a different purpose in leading the evidence emerged. For example, following an inquiry from the judge, Terry explained his purpose in leading the evidence in par 102 of his witness statement as being to prove his understanding that Ross was unhappy about Terry's knowledge of particular loans between Ross and the estate at the executors' meeting.[57] Her Honour ruled that the evidence could be admitted for that purpose.[58]
[57] ts 315 - 316.
[58] ts 316.
Paragraphs 115 and 116 of Terry's statement related to the Paterson Road blocks. After lengthy exchange and submissions from both parties, the judge overruled the objection and admitted the paragraphs into evidence.[59]

Pre-trial hearing of 19 May 2016

[59] ts 320 ‑ 327.

The hearing on 19 May 2016 dealt with a pleadings issue and with Terry's objections to the defendants' (respondents') proposed evidence.
The pleadings dispute concerned whether Ross and Roslyn should be given leave to further amend their defence and counterclaim. In the course of submissions on that topic, the following exchange occurred, upon which Terry relies in support of ground 1:[60]
[60] ts 377 ‑ 378.
WOODLEY, MR:   The amendments will lead to possibly the need for an expert's opinion as the - - -
PRITCHARD J:   Why is that, Mr Woodley?
WOODLEY, MR:   Because it's very technical accounting and there's interposed entities, and it's not just a straightforward situation - - -
PRITCHARD J:   Well, let's just - - -
WOODLEY, MR:   - - - and even - - -
PRITCHARD J:   I just want to make sure I understand where we're all at. And I'm going to repeat again for the benefit of you all my concern that to some extent the pleadings seem to assume that this court is going to be in a position to make factual findings about the extent to which there were loans or not loans, or who they were between or what have you, to - well, to a very large degree of detail. And I'm not yet persuaded that on an application of the kind that we're presently dealing with that I - it would be appropriate for me to go through and make findings about those matters beyond perhaps findings that would be to the effect that there is a dispute between the parties as to whether there was a loan, and whether the parties' behaviour in view of that dispute is reasonable or unreasonable. And that's a concern that I've voiced to you all before. It's one I continue to have. Of course, I will hear from you in the course of the trial about whether that's an approach which would not be consistent with the authorities and so on, but I just don't see these sorts of proceedings as being the appropriate vehicle to resolve some of the factual disputes that are referred to in the pleadings. That then perhaps will colour the evidence that would be relevant or irrelevant to the determination of the issue that I've got to determine at the hearing, but with that background - - -
WOODLEY, MR:   Well, yes, in a strict - - -
PRITCHARD J:   - - - let's turn to - - -
WOODLEY, MR:   In a strict sense I would say that the amendments are irrelevant full stop. They're just not necessary.
PRITCHARD J:   All right. Let's turn to the amendments now. (emphasis added)
After resolving the pleadings issue in favour of Ross and Roslyn, her Honour made the following observations, upon which Terry relies in support of ground 1:[61]
PRITCHARD J:   Can I just say before you say anything further, this trial is going ahead in that week in June that I've set down.
CUERDEN, MR:   Yes.
PRITCHARD J:   Unless some very surprising intervening act arises I intend to keep to that trial date for the reasons I've already given on numerous occasions so far that I've seen you. It's such a long time that this matter has been going on. It's time to get to trial and sort it all out, but I've sought to put you all on notice on repeated occasions, I've done it again today, I am unreally unconvinced about the need to and the appropriateness of this court finding facts about all of the sorts of things that are referred to. The question at the end of the day I've got to decide is: are you right Mr Woodley when you say the clients that Mr Cuerden is acting for wouldn't be appropriate people who can carry out the functions of administering this estate and vice versa Now, quite how much - - -
WOODLEY, MR:   Yes, your Honour. I've fully taken that on board.
PRITCHARD J:   Quite how much I need to go into all of this beyond finding, you know, where there's disputes and whether you can all see past those disputes in order to carry out your job properly or not, seems to be something that is getting lost in the detail so far from everyone's side I have to say. All the witness statements and the detail that's there and so on. There might be reasons why people are putting this and answering that, and putting that and answering that, but really I see it as a fairly confined question at the trial.
[61] ts 386.
The first objection made by Terry and contested by Ross and Roslyn related to pars 34 ‑ 36 of Ross's witness statement,[62] which stated in effect:
(1)Ross had no direct knowledge of the arrangements between his parents and Wayne concerning the Fitzpatrick Street units;
(2)Ross's understanding was based on discussions he had with his parents and Wayne; and
(3)based on those discussions, Ross understood that his parents would receive the rental income from the Fitzpatrick Street units during their lifetimes, pursuant to an agreement with Wayne.
[62] Green AB 143.
In response to the objection, senior counsel for Ross and Roslyn explained that the evidence was led only to prove Ross's understanding which was, in turn, relevant to the issue of whether his conduct in relation to the Fitzpatrick Street units bore on his fitness to be executor.[63]
[63] ts 389.
The judge informed Terry that, given that this was the purpose of the evidence, the evidence was not within the hearsay rule.[64] The judge explained that the evidence was not being led to establish the truth of the statement that the parents received rental income pursuant to an agreement with Wayne, but, rather, to establish that this was Ross's understanding.[65] The judge admitted the paragraphs on that basis.[66]
[64] ts 389 ‑ 390.
[65] ts 390.
[66] ts 390.
Terry also objected to pars 82 ‑ 86 of Ross's witness statement which gave evidence of discussions between Ross and Thomas.[67] The substance of Ross's evidence was that he and Thomas had made an oral agreement about their use of the Coronation Road property. In response, senior counsel for Ross and Roslyn submitted that, notwithstanding that the merits of the claims to Coronation Road property were the subject matter of separate proceedings, the evidence was relevant to show the lack of substance in Terry's position in relation to the Coronation Road property.[68]
[67] Green AB 150 ‑ 151; ts 394 - 395.
[68] ts 395 ‑ 396.
The primary judge immediately observed to Terry that, at that stage, he did not need to answer Ross and Roslyn's contention that this was evidence that the disputes raised by Terry were not genuine, but were in the nature of troublemaking.[69]
[69] ts 397.
The judge admitted the evidence on the limited basis that it was evidence of Ross's understanding of the position and not evidence as to the actual existence of an agreement in terms described in the paragraphs.[70]
[70] ts 397.
The judge observed to senior counsel for Ross and Roslyn that, if those parties wished, a submission that the evidence could be used for a wider purpose could be made at trial.[71]
[71] ts 397.
Her Honour then reiterated to Terry that she was not permitting the evidence in question to support the conclusion that there was in fact an agreement to the effect asserted by Ross. Rather, the evidence was allowed simply to establish Ross's belief.[72] Her Honour further observed that such evidence would be relevant to an assessment of the propriety of Ross's conduct.[73] Her Honour inquired of Terry whether he understood the difference between using the evidence in this way and using it to prove the agreement asserted. Terry replied that he did.[74] Terry relies on aspects of the above exchanges, made in the context of resolving his objections to paras 82 - 86, in support of ground 1.
[72] ts 397.
[73] ts 397 ‑ 398.
[74] ts 398.
From this it can be seen that, although senior counsel for Ross and Roslyn asserted a wider purpose, the judge admitted the evidence only for the purpose of establishing Ross's belief and understanding.
After this, a number of other paragraphs to which Terry objected were admitted by the primary judge on the same basis, namely as evidence of Ross's understanding.[75] In relation to pars 196 and 197 of Ross's statement, Terry observed that the primary judge would 'most probably want to admit that because it's [Ross's] understanding of the situation'.[76] The judge admitted those paragraphs on that basis.[77] Terry's concession and observation in relation to these paragraphs indicated that he understood the basis on which the preceding paragraphs of Ross's witness statement had been admitted.
[75] See, for example, ts 403.
[76] ts 403 - 404.
[77] ts 404.
In considering Terry's objection to par 209 of Ross's witness statement, the following exchange occurred, upon which Terry relies in relation to ground 3:[78]
[78] ts 406.
PRITCHARD J:   29, same again. It will be admitted into evidence - unless there's any different basis for the objection you wanted to advance, Mr Woodley?
WOODLEY, MR:   Well, all that I can say is that five days at the trial is not going to be enough if we're going to cover all these sorts of things.
PRITCHARD J:   Well, at the trial we're going to keep our eye on what's really in dispute - and if you want to (indistinct) some submissions, having regard to the matters that I've already raised, we can - - -
WOODLEY, MR:   That's why I've said 209 is irrelevant. We're just getting further and further away from the core issues all the time.
PRITCHARD J:   But why do we need to worry about it, Mr Woodley? It's there as part of the general narrative.
WOODLEY, MR:   It's just to try and cut down on the material that has to be reviewed prior and during and post-trial.
PRITCHARD J:   Are you going to make a submission to me that this really goes nowhere?
WOODLEY, MR:   Yes. It goes nowhere - and when it comes to a costs issue I will be raising that there were lengthy pleadings that were irrelevant and really didn't go anywhere.
PRITCHARD J:   Right. For the time being 209 is going to be admitted.
Terry made hearsay objections to pars 223 ‑ 227 of Ross's witness statement.[79] In those paragraphs, Ross gave evidence of a conversation with his mother in which she said that she would like to transfer her properties to her family while she was still alive, in response to which Ross said he would obtain valuations for the properties. Senior counsel for Ross and Roslyn advanced a number of bases on which it was said that this evidence was relevant and admissible.[80] It was submitted that, among other things, the evidence explained why a valuation of the Coronation Road property was obtained by Ross after his father's death,that being a matter relied upon by Terry.[81] The judge said that the evidence would be admitted on that basis, as evidence of Ross's understanding of the situation and his explanation for his conduct in obtaining the valuation.[82]
[79] Green AB 171; ts 408.
[80] ts 409 ‑ 410.
[81] ts 409 - 410.
[82] ts 410 ‑ 411.

The following exchange then took place, to which Terry points in support of grounds 1 and 2:[83]
[83] ts 411.
PRITCHARD J:   Mr Woodley, do you understand that interchange?
WOODLEY, MR:   Yes, I do, your Honour, but the other side of the coin is when any of my witnesses mentions that they have actually been to the units or had discussions with Tom or Shirley in relation to the units or the properties, they were all struck out.
PRITCHARD J:   Look, if - - -
WOODLEY, MR:   And - - -
PRITCHARD J:   Well, without going through it all over again, Mr Woodley, it wasn't made clear to me at the time that that evidence was being relied upon for the subjective understanding of those individuals.
WOODLEY, MR:   Well, that - - -
PRITCHARD J:   Now, I'm just dealing with the present application. It has been put to me that the evidence is going to be adduced for this purpose. I'm going to permit it to be relied upon for this purpose.
WOODLEY, MR:   Well, on that day - - -
PRITCHARD J:   You will recall on the last occasion I endeavoured to the best of my ability to try to understand what it was that you were trying to use the evidence for, and I made my rulings on the basis of the understanding that I gained from your submissions.
WOODLEY, MR:   Right. Well, all I can say is that the ambit of what we're talking about now is very wide compared to what we went through with my witness statements, that's all.
PRITCHARD J:   Paragraphs 223 to 227 will be admitted on the basis that they constitute evidence of Mr Ross Woodley's understanding of the position and are relevant to his conduct in respect of the valuations that were obtained.
The judge turned to Terry's objection to pars 243 ‑ 253 of Ross's witness statement.[84] The judge admitted those paragraphs on the basis that they were evidence of Ross's understanding, not evidence of the truth of the matters asserted in those paragraphs.[85] The following exchange then occurred, relevant to ground 1:[86]
WOODLEY, MR:   Accordingly, the witness statements in reply will be able to address these matters as well, your Honour.
PRITCHARD J:   The answer is, I don't know, Mr Woodley, because I don't know what it is that you propose to include in them.
WOODLEY, MR:   I'm just considering that you have a wider understanding of what's being proposed to you today by the defendants' counsel, that's all.
[84] Green AB 173 ‑ 175.
[85] ts 413.
[86] ts 413.
Later in the hearing, relevantly to grounds 1 and 3, there was the following exchange:[87]
[87] ts 426 ‑ 427.
PRITCHARD J:   You're going to want to cross-examine on 8, are you? It's going to matter something to your case, is it; that they milked the cows?
WOODLEY, MR:   In the whole scheme of things, yes.
PRITCHARD J:   You will.
WOODLEY, MR:   I - I - - -
PRITCHARD J:   You think you're going to be cross-examining on that?
WOODLEY, MR:   I have many issues with these things, yes.
PRITCHARD J:   Really?
WOODLEY, MR:   Yes.
PRITCHARD J:   Right.
WOODLEY, MR:   Yes.
PRITCHARD J:   Well, I will put you on notice now, Mr Woodley, to come along armed with the thought processes about what we need to explore at the trial in terms of the issues that are actually in dispute and how much of these witness statements does and doesn't need to be cross-examined about. I just want you to bear in mind the whole time at the trial what I'm going to be able to decide.
WOODLEY, MR:   Because these witnesses have made big and bold statements on things.
PRITCHARD J:   But the milking the cows on the Hamel block in the winter months is not one of those - - -
WOODLEY, MR:   That's not - - -
PRITCHARD J:   - - - is it?
WOODLEY, MR:   That's not a big and bold statement, no.
PRITCHARD J:   No.
WOODLEY, MR:   That doesn't fall into that category, but some of the others are just way out there and Registrar Boyle told us a year ago that you wouldn't be able to make a determination on those things and my understanding with Mr Burke was that we were getting rid of the peripheral matters and concentrating on the core issues and now, as we get down to trial, it seems like it has just blown out that big that it's unbelievable.
PRITCHARD J:   Well, my observations a moment ago - I will be repeating myself, but I will say it again - when you come along to the trial keep your eye on what do you need to establish to make out your case based on what I can decide and what it is that you need to challenge in the case put against you in the counterclaim to succeed in defeating the counterclaim - that is, that you get excluded - and keep your eye on that. I'm going to be - - -
WOODLEY, MR:   My eye on the ball.
PRITCHARD J:   - - - doing my best to try and keep my eye now. I'm sorry that you see there's some inconsistency here. I'm just doing my best to try not get us distracted and it seems that whether they're milking the cows on the Hamel block on the Bulla Road block or whatever, it doesn't seem, to me, to matter one iota. It just seemed to be, as I saw it, part of the general description of the business that was in 6 and 7 that you hadn't objected to. Now, - - -
WOODLEY, MR:   Well - - -
PRITCHARD J:   - - - if we're going to exclude it all, we can exclude it all - - -
WOODLEY, MR:   Yes.
PRITCHARD J:   - - - but, at the end of the day, I don't think this is something that you need to be worried about cross-examining about unless there's some big issue about it that I'm missing. Now, that's all I need to say on that issue.
At the end of a full day's hearing on 19 May 2016, not all of Terry's objections to the evidence to be adduced by Ross and Roslyn had been resolved. Consequently, a further hearing was listed for 26 May 2016.

The hearing of 26 May 2016

The hearing began by dealing with Terry's objections to Roslyn's witness statement. In the course of dealing with an objection to paragraphs concerned with general background, the following exchange occurred which is relevant to ground 3:[88]
WOODLEY, MR: Yes. I'm just trying to think ahead and trying to keep down to that five days. Otherwise - - -
PRITCHARD J: There's no question. We're going to get it done in five days, Mr Woodley. And everyone is going to be focused on what the issues really are at trial, because the only way the five days is going to be threatened is if people start cross-examining on things that are irrelevant. And so we're going to get through it.
[88] ts 459.
Terry's objections to pars 16 ‑ 25 of Roslyn's statement were overruled. That evidence concerned Ross and Roslyn building a house on Camarri's farm. The judge ruled that that evidence could be admitted as background narrative explaining what Ross and Roslyn knew about the ownership of Camarri's farm.[89]
[89] ts 460.
Terry objected to par 48 of Roslyn's statement. That paragraph stated that the funds Ross and Roslyn used to purchase their hardware store business and property were obtained from the bank, secured by a new house of theirs and by the sale of Camarri's farm. The judge inquired of Terry as to the problem with the paragraph. The following exchange ensued:[90]
WOODLEY, MR:   I just thought it wasn't helping proceedings. It was just irrelevant. But you've got to appreciate, your Honour, that I did these after we ran through my witness statements and we kept a fairly small ambit and now we've gone a little bit wider.
PRITCHARD J:   As I explained to you, Mr Woodley, I did the best I can to understand the purpose of your evidence going in.
WOODLEY, MR:   I accept that.
PRITCHARD J:   I'm sorry if you feel that that doesn't make sense, but I can only work with what I've got.
[90] ts 462.
The evidence was admitted as background as 'part of the story' about Camarri's farm and its beneficial ownership.[91]
[91] ts 463.
In the course of dealing with further objections, Terry observed that some of the objections 'should fall by the wayside now that we've gone out a little bit'.[92] Terry's comment would reasonably be taken to mean that he accepted that some of his objections would fall away in light of the admission of evidence for the additional wider purposes to which we have already referred.
[92] ts 463.
Paragraph 96 of Roslyn's statement stated that Ross was later transferred the Coronation Road property from his mother and took over the running of the farm. Terry's objection to this evidence led to the following exchange, on which Terry relies in support of ground 1:[93]
PRITCHARD J:   What's the problem with 96? The Coronation Road properties are at issue between everybody. So what - - -
WOODLEY, MR:   Well, I understood that you're not making a determination on the Coronation Road property.
PRITCHARD J:   No.
WOODLEY, MR:   We're trying to focus on executorship.
PRITCHARD J:   Absolutely.
WOODLEY, MR:   And that's why I just said it was irrelevant, but since then we've admitted quite a few other paragraphs.
PRITCHARD J:   But if we're talking about Ross' - if an issue is Ross' running of businesses and farming interests and whatever the nature of his experience in that kind of context might be, this has to be relevant to that because it's, again, a running of a farming property. They're all businesses - farming properties, pretty much, of any size these days. Don't worry. I won't be making - I mean what I say when I say that I'm not going to be buying into the question of who owns what properties now and where the legal entitlement might fall. So it's not going to help me with that, but I can't see any difficulty admitting it on the grounds of relevance. So 96 is in. All right. So 99 to 101 - you object on the same basis, Mr Woodley?
It may be noticed that in the course of this exchange, on which Terry relies, the judge assured Terry that she would not be buying into the question of who owns what properties and where legal entitlement might fall.
[93] ts 467.
Terry objected to pars 99 ‑ 104 of Roslyn's statement. In those paragraphs, Roslyn stated that she and Ross carried out work improving the Coronation Road property in May 2011, and that Terry attended from time to time, providing them with equipment and cartage services under a contract between him and Ross.
Senior counsel for Ross and Roslyn contended that this evidence was relevant in that it showed that Terry participated in the Coronation Road property being treated differently from his subsequent assertion that it was an asset of the estate.[94] The judge effectively accepted this submission. Her Honour stated that:[95]
[I]nsofar as anyone is going to be asking me to … draw any conclusions about the way people have behaved with respect to assets which are in issue … [these paragraphs] go to the question of people's attitudes to the property at particular points in time[.]
[94] ts 468.
[95] ts 468.
Her Honour overruled Terry's objection to pars 5 and 24 of Wayne's statement.[96] Senior counsel for Ross and Roslyn submitted that these paragraphs were all part of the matrix of fact in which the Fitzpatrick Street units came to be in Wayne's name.[97] Her Honour admitted the paragraph on that basis, saying:[98]
[96] Green AB 241, 245; ts 473.
[97] ts 472.
[98] ts 473.
PRITCHARD J:   Yes. I'm going to admit the paragraph on that basis so on the basis of its relevance in that way. But I, again, want to emphasise, unless there be any doubt, I don't anticipate this trial leading me to make any conclusions about who owns what disputed properties.
CUERDEN, MR:   Sorry, can I just say, in including the evidence we're not suggesting that your Honour would.
PRITCHARD J:   No.
CUERDEN, MR:   But the allegation against us is that we've actually improperly - - -
PRITCHARD J:   Yes, I know.
CUERDEN, MR:   Yes.
PRITCHARD J:   And I want to make clear to everybody that just because the evidence is going in and I've found it relevant for a particular purpose doesn't mean I think that I'm going to be finding - drawing conclusions here about - - -
WOODLEY, MR:   Titles or properties and - - -
PRITCHARD J:   - - - were the properties part of the estate or this person's or that person's. There are issues that I have to deal with about how people have behaved and whether they've rendered themselves unfit to be an executor for any particular reason, but that's the extent of it all.
Paragraph 21 of Wayne's statement related to a conversation he had with his father about purchasing property in Waroona.[99] Senior counsel for Ross and Roslyn submitted that the evidence was there to prove the fact of the conversation. Counsel submitted that, while the judge was 'not getting into' the question of ownership, they invited the judge to consider the veracity of the claims. In response, the judge said that she would remain to be persuaded that that was something she needed to do.[100]
[99] Green AB 244.
[100] ts 476.
Her Honour concluded the exchange as follows:[101]
PRITCHARD J: I put you all on notice about that. … I just want you all to be clear about that. Again, I just don't want there to be doubt. So 21 will be admitted despite it, on its face, appearing to be hearsay, on the basis that I've indicated. 23 to 24 goes to the question of the Fitzpatrick Street properties and this witness's role in relation to those properties and understanding of the situation, not to the truth of who owns them, in the end.
[101] ts 477.
Thereafter, substantially all of the objections were resolved on a similar basis or were withdrawn by Terry.[102]
[102] ts 478 ‑ 486.
Relevantly to ground 3, towards the end of the hearing, the judge made the following observations:[103]
PRITCHARD J: All right. None of you should be in any doubt. I don't have any intention short of some remarkable unexpected serious health issue for somebody requiring hospitalisation probably, gentlemen, of adjourning this trial. This is going ahead in two weeks. We're going to fit it in that five days. I don't have many other days, certainly none in June and I don't want to be putting this out till November and December. It's ludicrous. We are having this trial. We're going to get it done in five days.
Let that be a guide to your views about what should be sought, what's going to be led at trial, what's going to be cross-examined about and so forth starting with further and better discovery and arguments about it. So hence your side find what you have got, put it in an affidavit. Mr Woodley, you can consider your position about it. Now, you can confer about all of that. Can the affidavit be filed in the next day or two - Monday.
[103] ts 492.
At the conclusion of the hearing, her Honour made the following general observations regarding the scope of the issues in the action:[104]
PRITCHARD J: The key thing, I think, that you need to do when you're preparing yours - obviously, and this is a comment to you, Mr Cuerden, but I don't need to tell you this so much as I do perhaps to help Mr Woodley. At the commencement of the trial, I want to make sure I understand what the issues are and aside from the issue of the which will question, it's really about the legal criteria that the cases tell me I take into account for deciding whether to take the serious step of passing over somebody as an executor and again, you've heard me on numerous occasions say I just don't think this trial is the vehicle for determining questions of ownership so we're, really, largely looking at questions of the reasonableness of people's behaviour - this is drawing from what the pleadings say - or their fitness in other respects, whether health or business experience or otherwise.
So if we can all focus on that. I certainly will be trying to focus on that, Mr Woodley, and if you can focus on that too, that will, I think, assist us in getting through the trial as expeditiously as we can and moving on to other things.
[104] ts 497.

Procedural fairness to a self‑represented litigant: general principles

We adopt the general principles concerning procedural fairness to a self‑represented litigant outlined in Stone v Braun:[105]
[105] Stone v Braun [2015] WASCA 103 [62] ‑ [69]; the passage from Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1 was approved in Nobarani v Mariconte [2018] HCA 36 [47].
The challenges in the role of trial judge are increased when one (or more) of the litigants is not legally represented.
I adopt and apply the observations of Pullin, Newnes and Murphy JJA in Moleirinho v Talbot & Olivier Lawyers Pty Ltd:
What a judge ought do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case: Abram v Bank of New Zealand [1996] FCA 635; (1996) ATPR 41‑507, 31; Tobin v Dodd [2004] WASCA 288 [14]. The boundaries of intervention are flexible but the lodestar is a fair and just trial. It is clear, however, that a judge must not intervene to such an extent that he or she cannot maintain a position of neutrality or as to give an unrepresented litigant a positive advantage over another party. The advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which that litigant will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which the adversarial procedure offers to the unwary and untutored: Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1, 14; Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 [26]‑[29].
Many cases have recognised the dilemma and delicate balance created by the need to diminish the disadvantages suffered by a self‑represented litigant while maintaining the court's neutrality.
Depending on the circumstances, the court may need to take appropriate steps to ensure, so far as possible, that a self‑represented litigant has sufficient information about the practice and procedure of the court to mean that there is a fair trial. This duty does not extend to advising the self‑represented litigant as to how his or her rights should be exercised. Further, a duty to provide information in order to attempt to overcome the procedural disadvantages faced by a self‑represented litigant is not a duty to run the case for him or her.
The importance of ensuring that a self‑represented litigant understands the distinction between evidence and submissions is at the heart of the decision in Downes v Maxwell. In that case, the trial judge had repeatedly explained, and emphasised, the distinction between evidence and submissions. Nevertheless, on appeal the majority found that there had been a denial of procedural fairness, because there was a real risk that a comment of the trial judge to the self‑represented litigant made just before the time for him to elect whether to give evidence may have misled him to believe that his oral submissions could be relied on as his case.
In some circumstances a judge ruling proposed evidence to be inadmissible may need to explain the ground on which it is inadmissible with sufficient clarity to ensure that a self‑represented litigant understands it, and can consequently consider steps that might be taken to remedy the problem.
In communicating with a self‑represented litigant, the court must be careful to ensure that things said by the court do not inadvertently mislead the self‑represented litigant, including by reinforcing a misapprehension, about the applicable substantive or procedural law, or about the way in which the case is to be conducted. That is illustrated by Moleirinho and Downes v Maxwell.
Views may often reasonably differ as to where the line is to be drawn. That is illustrated by the fact that there were dissenting opinions in both Uszok and Downes v Maxwell. (citations omitted)
Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice.[106]
[106] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]; Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [4], [55]; Ugle v The State of Western Australia [2018] WASCA 97 [39].

Disposition

[159] Primary reasons [295].

Terry's submissions in support of ground 6 are brief. Terry submits that documents tendered at trial establish a claim for a debt owing by Wayne to Thomas and Shirley.[160] Terry further submits that, contrary to the judge's finding, cl 3 of Shirley's will did not forgive a debt of this character owed by Wayne.[161]
[160] Appellant's submissions [49].
[161] Appellant's submissions [50] ‑ [51].
Ground 6 goes nowhere because it attacks a finding that provided an additional, but unnecessary, basis for the judge's critical findings. Any error of the judge in relation to the effect of cl 3 of Shirley's will is immaterial to her Honour's conclusions. As explained in [130] ‑ [134] above, none of her Honour's critical findings or conclusion in relation to the relevant pleaded allegations is impugned by ground 6. In particular, none of the following conclusions are impugned:
(1)There was no evidence that Tracenia Nominees owed any money to the estate.[162]
(2)There was nothing to suggest that, as at October 2011, Ray or Ross had any knowledge of the existence of a debt by Tracenia Nominees or Wayne to the estate.[163]
(3)Thus, there was nothing to suggest that it was unreasonable for Ross and Ray to have failed to include any debt of that kind in their proposed statement of the assets and liabilities of the estate.[164]
[162] Primary reasons [290] ‑ [294].
[163] Primary reasons [295].
[164] Primary reasons [295].
Those unchallenged findings sustained, indeed compelled, her Honour's ultimate conclusion rejecting Terry's allegation that Ross and Ray should be passed over because they failed to disclose the Tracenia Nominees loans as assets of the estate.
For these reasons, ground 6 fails.

Ground 7

Ground 7 contends that the judge erred in finding that:
(1) Ross and Ray did not have a conflict of interest in relation to 26 Janis Street; and
(2) their conduct, in not pursuing a potential claim of the estate in relation to 26 Janis Street (despite there being sufficient evidence of that potential claim), did not warrant their being passed over as executors.
As will be seen, this ground is divorced from the issues at trial, and it asserts that the judge made findings that her Honour did not make. It must be rejected on those bases.

The judge's approach

As we have explained, the judge distilled Terry's numerous pleaded allegations as to why Ross should be passed over into 12 allegations.[165] Nothing in Terry's grounds of appeal or submissions provide any reason to doubt that distillation.
[165] Primary reasons [68].
The judge dealt with the allegations in turn. After considering the relevant evidence, the judge found that Terry's allegation that Ross was unsuitable, having regard to his age and health and because he lacks the education and experience to carry out the role of executor and trustee, was not supported by that evidence.[166]
[166] Primary reasons [259] ‑ [262].
Having reached her conclusions in this respect, the judge then added 'for completeness' the following observation:[167]
For completeness, it is appropriate to mention a further issue briefly touched on in cross-examination, which also appeared to be directed to the contention that Ross is not suitable to act as an executor because he does not have the requisite knowledge to do so. In cross-examination, Ross was asked about his understanding that Wayne purchased a block of land next to the block that his parents owned in Mandurah. The transfer was in evidence. It indicated that the transferee was Tracenia Nominees Pty Ltd (rather than Wayne himself). Ross accepted that he had failed to make a reasonable investigation before making the statement that Wayne had bought the block. However, Wayne's evidence was that Tracenia Nominees is a company of which he is the sole director (and shareholder). It is hardly surprising in those circumstances, that Wayne himself equated the property owned by that company as his own property. For Ross to do so does not provide any foundation for a conclusion that he is not fit to carry out the role of an executor of Shirley's will.

Appellant's submissions

[167] Primary reasons [263].

Terry's submissions in support of ground 7 are to the following effect:
(1)As a result of his misunderstanding of the issues at trial, and the lack of opportunity to amend his case once the misunderstanding became evident, Terry was unable to present all relevant evidence concerning this issue.[168]
(2)Tracenia Nominees purchased 26 Janis Street in its capacity as trustee of the Woodley Family Trust, the beneficiaries of which included Thomas and Shirley.[169]
(3)It is 'reasonable to imply that other distributions were made to other beneficiaries' and that those beneficiaries would have included Thomas and Shirley so that 'the matter deserved further investigation'.[170]

Disposition

[168] Appellant's submissions [53].

[169] Appellant's submissions [54] ‑ [57].

[170] Appellant's submissions [58].

For the following three reasons, this ground must be rejected.
First, contrary to Terry's assertion, at trial there was no 'issue' concerning any potential claim of the estate relating to the property at 26 Janis Street. No such claim was pleaded. Consequently, Terry's submission, that his misunderstanding of the issues prevented him from presenting 'all the relevant evidence concerning this issue',[171] falls away. There was no such issue.
[171] Appellant's submissions [53].
Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or through inadvertence, he failed to put during the trial when he had an opportunity to do so.[172] In particular, a point cannot be raised for the first time on appeal if, as here, it could possibly have been met by calling evidence below.[173] In deciding whether or not a point was taken at trial, no narrow or technical view should be taken. It is necessary to look at the actual conduct of the trial to see whether a point was, or was not, taken at trial.[174] It is plain from a review of the record that Terry made no claim at trial that one of the reasons that Ross and Ray should be passed over arose from a possible claim by the estate relating to the property at 26 Janis Street. As we have said, no such claim was pleaded. Nor did Terry's written submissions, or his closing submissions at trial, refer to any such claim.
[172] University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481, 483.
[173] Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, 497.
[174] Moustakas (497).
For these reasons, Terry should not be permitted to raise this new ground on appeal.
Secondly, and in any event, the judge did not make the error asserted in ground 7. Ground 7 complains that the judge found that Ross and Ray did not have a conflict of interest, and had not acted in a way that supported their being passed over as executors, by reason of their unwillingness to pursue the claim for potential estate relating to 26 Janis Street. The judge made no such finding. Her Honour said nothing about the topic, it not having been raised before her.
Thirdly, by ground 7, Terry effectively asserts that the estate's potential claim to the property at 26 Janis Street 'deserved further investigation'.[175] Neither the primary proceedings nor this appeal constitute an occasion for the investigation of claims. Moreover, there is nothing in the meagre material before this court to suggest, much less demonstrate, that such a claim by the estate would have substance.
[175] Appellant's submissions [58].
For all these reasons, ground 7 is without merit.

Ground 8

Ground 8 asserts that the judge made an error of fact about Terry's credibility when her Honour decided not to rely on his evidence unless it was corroborated.
The judge made adverse findings as to Terry's credibility, generally deciding not to rely on his evidence except where it was corroborated by other evidence.[176] Her Honour explained her approach in the following manner:[177]
Terry did not impress as a witness. At times he was aggressive and quite belligerent, and at the end of his evidence he became quite emotional. In addition, Terry demonstrated a tendency to gloss over evidence which was inconsistent with his own views, or to exaggerate aspects of his evidence, to bolster his own case. (I have referred to some examples, below.) For these reasons, I approached Terry's evidence with some caution, and, generally speaking, I have not relied on his evidence except where it was corroborated by other evidence.
One of the key planks of Terry's claim that Ross and Ray should be passed over as executors of Shirley's will is his claim that each of them refuses to acknowledge the extent of their indebtedness to the [e]state. In order to resolve the question whether any of the [e]xecutors should be passed over, it has not been necessary to do more than form a preliminary view of the strength of Terry's claims that Ross and Ray are indebted to the [e]state. However, there was a clear divergence in the evidence given by Ross, Ray and Wayne as to the circumstances in which Thomas and Shirley came to advance them funds, or in relation to their ownership of particular real property, and Terry's 'evidence' on those questions. And, as I explain in further detail below, much of Terry's 'evidence' in relation to those claims amounted to no more than his own conclusions based on his analysis of available documentary evidence.
Furthermore, this was an area in which Terry appeared willing to exaggerate his evidence in order to bolster his own case. By way of example, in the course of cross-examination, Terry claimed that in September 2011 he had discovered that the [d]efendants were indebted to the [e]state for a (further) $75,000 which Shirley had given them to discharge a loan in the name of Roslyn's mother. Terry admitted that there was no mention of that additional alleged loan in his Statement of Claim, nor in his witness statement, nor had he discovered any documents in respect of this alleged loan. When he was asked why it was not referred to in his witness statement his response was 'how many libraries do you want me to fill up?' When he was asked why he had not included reference to this additional loan in his pleading, he claimed that 'I forgot about it at the time'. And when it was put to him that he had concocted this evidence, his explanation was that 'not all the facts have been made available to me right from the start'.
[176] Primary reasons [15].
[177] Primary reasons [15] ‑ [17].
It is well established that an appellant who seeks to overturn credibility‑based findings of fact faces a high hurdle. An appellate court is, in some respects, at a disadvantage as compared to a trial judge who sees and hears the witnesses giving their evidence. Generally, the trial judge's credibility‑based findings of fact will not be reversed on appeal unless it is demonstrated that (1) those findings are flawed by reference to incontrovertible facts or uncontested testimony; or (2) the findings are glaringly improbable or contrary to compelling inferences; or (3) the trial judge has failed to use, or has palpably misused, their advantage as trial judge.[178]
[178] Frank Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43]; RCR Tomlinson Ltd v Russell [2017] WASCA 129 [74].
Terry's submissions in support of ground 8 fall well short of meeting this high hurdle. The submissions are brief, comprising four paragraphs. Essentially, the submissions make two points:
(1)The judge based her decision partly on an email from Terry to Ross and Ray when that exhibit did not disclose the attachments to the email.[179]
(2)Terry thought he was unable to challenge the admission of the evidence on that basis, particularly considering the time pressure he was under.[180]
[179] Appellant's submissions [60], referring to primary reasons [369].
[180] Appellant's submissions [62].
These submissions provide no basis to impugn the judge's findings as to Terry's credibility. Contrary to Terry's submissions, the judge's findings as to his credibility were not based, in any respect or to any extent, on the email of 2 November 2011 to which Terry's submissions refer. Rather, the judge's findings as to credibility were explained in the paragraphs we have set out at [153]. The judge referred to the email in the context of her Honour's conclusion that Terry's relationship with Ross, Ray and Wayne was so bitter that he would be unable to objectively carry out the role of executor.
In any event, there is no basis to suppose that the annexures to the email could have borne on the judge's conclusions relating to that email. It was the tone and content of the email which the judge found was indicative of his acrimony towards Ross and Ray. The judge quoted the following extract from the email:[181]
Your day of reckoning has come boys. It will come with a vengeance and I will bury you in paperwork and this estate will go nowhere for years. I have the financial, technical and professional resources at my disposal. I have made multiple copies of documents and they are saved in multiple locations in traditional paper and electronic means.
…
Do I get an Oscar for my acting ability Ross? I told you at the farm 24/09/2011 to put a smile on your face. I even asked you again to put a smile on your face.
Never. I repeat, never underestimate my abilities and dogmatic attitude in pursuing this matter.
[181] Primary reasons [365], quoting exhibit 1-587.
The judge's conclusion - that this email was indicative of a level of acrimony inconsistent with the objective discharge of the role of executor - was amply justified.
Ground 8 must be rejected.

Terry's application to adduce additional evidence

Terry applied to adduce additional evidence at the hearing of the appeal, in the form of his affidavit of 31 July 2018. He supported his application by written submissions dated 3 August 2018 which he handed up at the hearing of the appeal. The court received the affidavit provisionally, on the basis that it would rule as to the admissibility of the affidavit, and any weight to be given to it, in the course of its reasons for decision.[182] For the reasons set out below, we would not admit the proposed additional evidence.
[182] Appeal ts 5.
The approach of this court to an application to adduce additional evidence was explained in Saunders v The Public Trustee.[183] We apply those principles, without repeating them.
[183] Saunders v The Public Trustee [2015] WASCA 203 [87] ‑ [90].
The first part of Terry's affidavit[184] is evidently said to relate to ground 5. In effect, the evidence is that Wayne filed pleadings in the separate proceedings concerning the Fitzpatrick Street units which Terry claims provide some support for his position. This proposed evidence is of no real probative value. The pleadings filed by Wayne are not fundamentally inconsistent with any of the judge's central conclusions. In any event, the central question in the primary proceedings and in this appeal did not concern Wayne's position in relation to the Fitzpatrick Street units. It concerns whether Ross and Ray's conduct in relation to this issue is a reason to pass them over as executors. Nothing in the proposed additional evidence bears on that to any significant degree.
[184] Affidavit of Terry Woodley, 31 July 2018, [1] ‑ [12].
Paragraphs 13 ‑ 32 of the affidavit concern a loan said to have been made to Wayne by Thomas and Shirley and are evidently intended to relate to ground 6. This evidence is not probative of the issues tried by the judge. As we have explained, Terry did not plead that Wayne owed money to Shirley's estate or Thomas's estate. Moreover, there is no reason to receive the numerous paragraphs of the affidavit which simply refer to documents that were already in evidence at the trial, and which are contained within the green appeal book.[185]
[185] Affidavit of Terry Woodley, 31 July 2018, [22] ‑ [27], [32].
Paragraphs 33 ‑ 49 of the affidavit are said to relate to ground 7 and the alleged conflict of interest of Ross and Ray arising from the potential claim of Thomas and Shirley in relation to distributions in the WC Woodley Family Trust and in relation to 26 Janis Street. As we have explained in dealing with ground 7, such claims were no part of Terry's pleaded case at trial and Terry should not be permitted to raise such new claims on appeal.
The balance of the affidavit is essentially taken up with complaints in relation to Ross's and Ray's conduct subsequent to their appointment as executor, pursuant to the orders made by the judge. Such matters provide no basis to impugn the orders made by the judge.
For these reasons, we would dismiss the application to adduce additional evidence.

Conclusion

For these reasons, the application to adduce additional evidence and the appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE BEECH
30 AUGUST 2018

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION: WOODLEY -v- WOODLEY [2018] WASCA 149 (S)
CORAM:   MURPHY JA
MITCHELL JA
BEECH JA

HEARD:   30 AUGUST 2018 AND ON THE PAPERS
DELIVERED          :   3 OCTOBER 2018
FILE NO/S:   CACV 46 of 2017
BETWEEN:   TERRY RAY WOODLEY
Appellant
AND
ROSS MAXWELL WOODLEY
First Respondent
RAYMOND THOMAS WOODLEY
Second Respondent
WAYNE CHARLES WOODLEY
Third Respondent
ANN CHERYL LEWIS
Fourth Respondent
ROSLYN PATRICIA WOODLEY
Fifth Respondent
KIM REBECCA WOODLEY
Sixth Respondent
ANGELA WOODLEY
Seventh Respondent
NATALIE CHANTELLE BIRCH
Eighth Respondent
MORGAN LEE WOODLEY
Ninth Respondent