Woodley v Woodley [No 3]

[2015] WASC 425

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   WOODLEY -v- WOODLEY [No 3] [2015] WASC 425

CORAM:   BEECH J

HEARD:   30 OCTOBER 2015

DELIVERED          :   30 OCTOBER 2015

PUBLISHED           :  6 NOVEMBER 2015

FILE NO/S:   CIV 2080 of 2013

BETWEEN:   TERRY RAY WOODLEY

Plaintiff

AND

ROSS MAXWELL WOODLEY
Defendant
 

Catchwords:

Practice and procedure - Joinder - Where other proceedings on foot for grant of probate - Role of Public Trustee until probate or administration granted

Legislation:

Public Trustee Act 1941(WA), s 9

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     In person

Defendant:     Mr J Burke

Non-party:     Mr M J B Bowyer

Solicitors:

Plaintiff:     In person

Defendant:     MDS Legal

Non-party:     Public Trustee

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

Byers v Overton Investments Pty Ltd [2001] FCA 760; (2001) 109 FCR 554

GEL Custodians Pty Ltd v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973

Hart‑Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998)

Public Trustee v Seow [2003] WASC 62

Re Cameron; Cameron v Public Trustee [1982] WAR 55

Woodley v Woodley [No 2] [2015] WASC 274

BEECH J: 

(These reasons were delivered orally and have been edited from transcript)

Introduction

1. The plaintiff, Mr Woodley, applies for an order that the Public Trustee be joined as a defendant.  For the reasons that follow, I would dismiss the application.

Background

1. The background to the application is as follows.  By letter of 25 September 2015, the defendant's solicitors raised questions as to whether the allegations made by the plaintiff in his statement of claim meant that it was necessary or appropriate that the estate of Shirley Woodley be represented in the action.  An outline of Mr Woodley's statement of claim can be found in Woodley v Woodley [No 2].[1]

   [1] Woodley v Woodley [No 2] [2015] WASC 274 [3] ‑ [14].

2. Probate has not been granted in relation to the estate of Shirley Woodley.  The plaintiff has commenced proceedings in this court, being action CIV 1821 of 2013, concerning which of the estate's named executors should be granted probate of the estate.  That action is being case managed by another judge in the CMC list.

3. The defendant's solicitors' letter of 25 September 2015 also raised questions as to whether the Public Trustee might be made a party under s 9 of the Public Trustee Act 1941 (WA).

The plaintiff's application

1. The plaintiff has applied to join the Public Trustee as a defendant in the action, relying on s 9 of the Public Trustee Act.

2. He seeks an order that the Public Trustee be joined in order to protect the interests of the estate of Shirley Woodley.

3. The Public Trustee opposes the making of an order joining it as a defendant.

Analysis of s 9 of the Public Trustee Act

1. Section 9 of the Public Trustee Act provides as follows:

   Upon the death of any person, and until probate or administration is granted in respect of his estate, the real and personal estate of such deceased person shall be deemed to vest in the Public Trustee, but without any charge being leviable therefor. Any estate or property at the commencement of this Act vested in the Chief Justice under the provisions of section 22 of the Administration Act 1903, or any corresponding previous enactment, shall, by virtue of this Act, vest in the Public Trustee.

2. The gist of s 9 is that the real and personal estate of a deceased person is deemed to vest in the Public Trustee upon death and until probate or administration is granted.

3. It has been held in this court that s 9 does not authorise the joinder of the Public Trustee as a party to proceedings.[2] . In that decision Wallace J found that the intention of s 9 is to ensure that property vested in the Public Trustee for the 'momentary holding purpose' between death and the point of probate to satisfy the need to give ownership of real and personal property to someone.

   [2] Re Cameron; Cameron v Public Trustee [1982] WAR 55.

4. That decision was cited with approval by Murray J in Hart‑Roach v Public Trustee.[3] Murray J described the purpose of s 9 as being to prevent a lacuna in the chain of title and to ensure that, by reposing title in the Public Trustee, that office was clothed with power to take such action as was immediately necessary to preserve and protect the estate pending a grant of probate or administration. He described s 9 as a temporary expedient.

   [3] Hart‑Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998).

5. The decision in Re Cameron was referred to without disapproval by the Full Federal Court in Byers v Overton Investments Pty Ltd.[4]  The decision to different effect in GEL Custodians Pty Ltd v The Estate of the late Geoffrey Francis Wells[5] relates to s 61 of the New South Wales legislation which is in different terms.

   [4] Byers v Overton Investments Pty Ltd [2001] FCA 760; (2001) 109 FCR 554 [19] (the Court).

   [5] GEL Custodians Pty Ltd v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973.

6. To my mind, the express prohibition on charging that is set out in s 9 reinforces the construction of the section that has been adopted in the decisions of this court to which I have referred.

7. For these reasons I find that s 9 does not authorise the joinder of the Public Trustee.

The potential role of s 35 of the Administration Act

1. In my view, s 35 of the Administration Act 1903 (WA) provides a statutory means of addressing a situation where, as here, probate has not been granted, probate proceedings are pending, and, in the meantime, the estate's interest needs to be represented. An example of the use of s 35 in this way is to be found in Public Trustee v Seow.[6]

   [6] Public Trustee v Seow [2003] WASC 62.

2. Thus, in my view, one way of proceeding is for a party to apply to appoint someone as administrator of the deceased estate of Shirley Woodley.

Other submissions of the parties

1. In his submissions, the plaintiff has said that in his view, the interests of the estate need to be protected as five rural properties are 'turning to utter rubbish'.[7] In my view, that assertion, if made good, might well be a ground for the appointment of an interim administrator of the deceased's estate. However, for the reasons I have already given, it does not engage s 9 of the Public Trustee Act and does not alter the position that s 9 does not sustain the joining of the Public Trustee.

   [7] ts 47.

2. In its submissions, the Public Trustee made clear that were an application for an interim administrator to be made seeking the appointment of the Public Trustee as administrator, the Public Trustee would, or would in all likelihood, decline the appointment.  The Public Trustee has made submissions that it is entitled to decline a proposed appointment.  Given that there is no such application before the court, it is not appropriate to express any concluded view on the question of whether it is open to the Public Trustee to do so.  However, on the face of it, there seems to me to be considerable force in what is said on behalf of the Public Trustee as to its powers in that respect.

3. Among the alternatives now available in the circumstances in this case would seem to be:

   (1)the making of an application for the appointment of someone as interim administrator of the estate; and

   (2)the putting of these proceedings on hold pending the outcome of the probate proceedings.

4. I will hear from the parties as to how they propose to proceed in light of my decision on this application.

Conclusion

1. For these reasons, I would dismiss the plaintiff's application.