AA AS EXECUTOR OF THE ESTATE OF BB -v- XX [No 2] [2024] WASC 39 (23 February 2024)

1. The fourth plaintiff advanced comprehensive submissions as to whether it could be concluded that the first defendant had gained a benefit in respect of the FF Investment Trust as a consequence of the deaths of BB, CC and GG.[38]
2. Ultimately, the submission put on behalf of the fourth plaintiff was that the first defendant derived no direct benefit in this regard. I accept the force of that submission, largely for the following reasons:

(a) The first defendant has not derived any interest in the FF Investment Trust that the first defendant did not already have, namely the right to be considered as a potential beneficiary and the right to the due administration of the trust in accordance with the terms of the trust.

(b) Further, the first defendant gained no legal or equitable interest in the fund of the trust, and remains only a potential beneficiary.

(c) Allied to the foregoing point, the trustee of the FF Investment Trust has an absolute discretion in relation to the making of distributions of income and capital from the trust fund.

(d) Each of BB, CC and GG did not have any legal or beneficial interest in the property of the FF Investment Trust fund and were, like the first defendant, potential beneficiaries of the trust only. Accordingly, the first defendant did not by their deaths, gain any legal or beneficial interest that any of BB, CC or GG had in the property of FF Investment Trust.

1. I therefore conclude that the forfeiture rule is not engaged in this respect to forfeit any rights or interest the first defendant has as a specified beneficiary of the FF Investment Trust, and the rule does not prohibit the trustee of the trust from making distributions of income or capital in favour of the first defendant.
2. The declaratory relief sought by the fourth plaintiff in paragraph 3(a) of the originating summons should therefore be granted.

H. Fourth issue - the FF Investment Trust (removal of beneficiary) Overview

1. The answer to the third issue gives rise to an additional series of issues, which I will address as the fourth issue and the fifth issue. These additional issues are the subject of the relief sought by the fourth plaintiff in paragraphs 3(b) and 3(c) of the originating summons, and in paragraphs 4(a) and 4(b) of the originating summons.
2. The fourth plaintiff seek a declaration or a direction that, in its capacity as the trustee of the FF Investment Trust, it has the power to remove the first defendant as a specified beneficiary of the FF Investment Trust, subject to compliance with the FF Trust Deed. In the event the court is satisfied that such power exists, the fourth plaintiff seeks judicial advice that it would not be unreasonable or unjustifiable for it to exercise the power.

1. The approach to the construction of a trust deed is relatively uncontroversial. The rules applicable to written contracts also apply to trust instruments. The task involves ascertaining what a reasonable person would have understood the parties to the instrument mean. The primary task is to discover the intention of the settlor from the words used in the instrument read as a whole.[39] The words of the clauses in a trust deed must be given their ordinary and natural meaning, read in the context of the trust deed as a whole, unless of course the words have a special or technical meaning.[40]
2. As to the exercise of a trustee's discretionary powers, such powers are to be exercised in good faith upon a real and genuine consideration in accordance with the purposes for which the discretion was conferred, and not for any purpose or design that is beyond the intended scope and purpose of the trust. To exercise the power in such a manner would constitute a fraud on the trust power.[41]

1. Clause 3 of the FF Trust Deed is headed 'Beneficiaries'. Clause 3.3 is headed 'Removal of beneficiaries' and relevantly provides as follows:

3.3 Removal of beneficiaries

(1) A beneficiary, other than a Specified Beneficiary will cease to be a beneficiary:

(a) ...

(b) where the Trustee, with the consent of the Appointor, by deed declares that a person, corporation, trust or other entity (or class of them) is no longer to be included as a beneficiary and the deed may be expressed to be irrevocable.

(2) If the Trustee or a beneficiary makes a declaration under sub‑clause 3.3(1), the Excluded Class shall as and from the date of that declaration be modified accordingly.

(3) The provisions of sub-clause 3.3(1)(b) will be effective to exclude as a beneficiary a person under a disability or, or more than one beneficiary, but will not be effective where the operation would result in there being less than two natural persons as beneficiaries of the Trust.

(4) A person who has been removed as a beneficiary, may be reappointed unless the removal was subject to an irrevocable declaration.

(5) Nothing in clause 3.3 affects the rights of a person who has ceased to be a beneficiary to income or capital to which that person became entitled prior to such cessation.

(6) A Specified Beneficiary may only cease to be a beneficiary where a declaration pursuant to sub-clause 3.3(1)(b) is made and a variation of this deed to that effect is made in accordance with clause 8 and where there will remain at least one Specified Beneficiary.

1. Clause 8 of the FF Trust Deed is headed 'Variation of Trust'. Clauses 8.1 and 8.2 provide as follows:

8.1 Variation of Trust

8.1 Variation of trust deed

Subject to clause 8.2, at any time prior to the termination date the Trustee may with the written consent of the Appointor (if any) by deed alter, vary or revoke any trust or provision of this deed other than this clause and clauses 3.4, 3.5 and 7.4.

An alteration, variation or revocation pursuant to clause 8.1 must not:

(a) divert or modify a vested interest of a beneficiary in income or capital or the investment representing that or income derived from any such investment to which such beneficiary has become absolutely entitled pursuant to this deed or result ...in any adverse taxation consequences for any beneficiary that was not intended by the Trustee; or

(b) infringe any applicable law or rule against perpetuities or relating to remoteness of vesting or the period during which income may be accumulated or otherwise extend the termination date or resettle the Trust for tax and/or stamp duty purposes or result in the provision of the trust becoming void.

1. Having regard to the foregoing provisions of the FF Trust Deed, on a proper construction of that deed, I accept that the fourth plaintiff, with the consent of the Appointor, has power to declare the first defendant is no longer a beneficiary of the trust. There are two provisos to this.
2. The first proviso is that the declaration is to be made in the form of a variation of the trust deed in accordance with cl 8.1 of the FF Trust Deed, and does not have any of the consequences set forth in cl 8.2. The second proviso is that there must remain at least two natural persons left as beneficiaries of the trust.[42] As to the second proviso, I am satisfied on the evidence that there are more than two natural persons remaining as beneficiaries, other than the first defendant.[43]
3. There being power to remove the first defendant as a beneficiary, it remains to consider whether the court should provide the fourth plaintiff with judicial advice that it would not be unreasonable or unjustifiable to exercise the power to remove the first defendant as a beneficiary of the FF Investment Trust.
4. The fourth plaintiff submits that the trustee's discretionary powers are to be exercised having regard to the fact that the primary purposes of establishing the trust include giving the trustee the widest possible discretion in the exercise of its powers. Specifically, cl 2.3 of the FF Trust Deed provides as follows (with the plaintiffs placing particular reliance on the terms of cl 2.3(4)):

The primary purposes of establishing the Trust are (without limitation):

(1) to directly or indirectly provide financial and other assistance and benefits in any degree for any one or more of the beneficiaries;

(2) to invest or utilise all or any part of the trust fund to achieve the purpose in sub clause 2.3(1) without the necessity to have regard to generating income or accretion of capital;

(3) to assist or benefit beneficiaries without the necessity to have regard to the taking of security or the possibility of incurring a loss of capital; and

(4) to give to the Trustee the widest possible discretion in the exercise of its powers. (emphasis added)

1. In support of the exercise of the discretion, and to justify the exercise of the powers under the FF Trust Deed, the fourth defendant emphasises the following matters:

(a) First, the FF Investment Trust is a family discretionary trust created to make provision primarily for the children of BB and CC (as Specified Beneficiaries) and BB and CC (as General Beneficiaries). BB, until his death, was the sole appointor of the FF Investment Trust and was one of two directors of the corporate trustee of the FF Investment Trust.

(b) Second, and fundamentally, the first defendant was charged with murdering BB, CC and GG, and with attempting to murder the second defendant.

(c) Third, between 2015 and 2022, the trustee of the FF Investment Trust made significant distributions for the benefit of the first defendant, the large proportion of which was to fund the first defendant's legal representation in respect of defending the criminal charges.

(d) Fourth, the first defendant has been convicted in respect of all charges and has exhausted all avenues of appeal.

(e) Fifth, the remaining net assets in the FF Investment Trust are relatively modest.

1. I agree the foregoing matters are prima facie relevant to the exercise of the powers.
2. Counsel for the plaintiffs and the second defendant were unable to identify authority which provided direct support for the relief which is sought in paragraph 3(c) of the Originating Summons.[44] A number of authorities were however cited which were said to be of some assistance by way of analogy.[45] I will deal with these authorities below.
3. By way of example, my attention was drawn by the plaintiffs to EEU20 v Meat Industry Employees' Superannuation Fund Pty Ltd,[46] a decision of Mortimer J (as her Honour then was). Her Honour considered that in assessing whether a superannuation trustee's death benefit determination was fair and reasonable in all the circumstances, regard should have been had by the primary tribunal reviewing the exercise of the trustee's discretion, to allegations that the spouse of the deceased member had been involved in events that led to the death of the deceased.
4. The involvement by the spouse in the incident that resulted in the deceased's death, was considered by the court to be a matter that was relevant to the assessment of what was a fair and reasonable exercise of the trustee's discretion in respect of to whom the death benefits should have been paid.[47] The authority is of limited assistance to the issue before me, as the fourth plaintiff frankly acknowledged, as the matter was primarily assessed in the context of a procedural fairness complaint.
5. Counsel for the second defendant referred to Curwen v Vanbreck Pty Ltd[48] and Mandie v Memart Nominees Pty Ltd,[49] by way of analogy.
6. In Curwen v Vanbreck Pty Ltd, the Supreme Court of Victoria examined the exercise by a trustee of a power to exclude a beneficiary. The trust deed was expressed in broad terms, with an express stipulation that every discretion vested in the trustee 'shall be absolute and uncontrolled' and every power vested in the trustee 'shall be exercised at its absolute and uncontrolled discretion' and the trustee shall have the 'like discretion in deciding whether or not to exercise any such power'. The trust deed also provided that the trustee may at any time by deed, whether revocable or irrevocable, 'appoint that any person who would otherwise be a Beneficiary for the purposes of this Deed shall be excluded from the class of Beneficiaries' (cl 20(1)).
7. Mandie J accepted that the exercise of an exclusion power in a trust deed would be invalidated if the trustee's purpose (or one of the trustee's purposes) was to prevent access by a beneficiary (including a beneficiary of a discretionary trust) to trust accounts or other information relating to a trust. That was because, in his Honour's view, the denial of such access rights to a beneficiary would not be a proper purpose for exercise of the exclusion power. However, on the facts of the case before, his Honour was not satisfied, on the balance of probabilities, that such improper purpose was one of the trustee's purposes in exercising the exclusion power.[50]
8. In analysing the issue, Mandie J accepted the principles stated by McGarvie J in Karger v Paul,[51] and noted that the exercise of a discretion in the terms of the trust deed in the case before him would not be examined or reviewed by the courts so long as the essential component parts of the exercise of the particular discretion are present. The essential component parts would be present, according to McGarvie J, if the discretion was exercised by the trustees in good faith, upon a real and genuine consideration, and in accordance with the purposes for which the discretion was conferred. The exception noted by his Honour was that the validity of the trustee's reasons would be examined and reviewed if the trustees chose to state their reasons for their exercise of discretion.
9. Mandie J went on to note McGarvie J's conclusion that (in the case before him) it was open to the court to examine the evidence to decide whether there had been a failure by the trustees to exercise their discretion in good faith, upon a real and genuine consideration, and in accordance with the purposes for which the discretion was conferred.[52]
10. Mandie J concluded, from his review of the authorities, that although a trustee's reasons for exercising a discretionary power are not examinable for the purpose of challenging the way in which the discretion was exercised, they are examinable to enable an enquiry as to whether the trustee had an ulterior or improper purpose and as to whether the trustee gave real and genuine consideration to the exercise of the discretion.[53]
11. The requirement that the trustee act upon 'real and genuine consideration' has its difficulties, according to Mandie J, in cases where the trust deed does not provide any governing criteria for the exercise of the power concerned and the trustee is left entirely at large in deciding whether and how to exercise the power.[54]
12. In Mandie v Memart Nominees Pty Ltd, the Victorian Court of Appeal examined a power to exclude General Beneficiaries in the following terms:

... PROVIDED FURTHER that the Trustee at any time and from time to time may (subject to Clause 10 hereof) declare in writing that any person shall thereafter be excluded from the class of General Beneficiaries notwithstanding that but for such exclusion he would by reason of one or more of the matters or circumstances hereinbefore referred to have been a General Beneficiary and the class of General Beneficiary shall as from the date of the making of any such declaration be modified accordingly ...

1. The Court of Appeal declined to accept the submission that the trustee's declaration was made without power on the basis that it altered the original purpose or substratum of the trust, and effectively constituted a new settlement. The court adopted the approach taken by the NSW Court of Appeal in Kearns v Hill,[55] where the court similarly rejected an argument that a broadly expressed amendment power should be read down so as to prevent an amendment that destroyed the 'substratum of the trust'. In doing so, Meagher JA in Kearns v Hill described the trust deed in that case as:[56]

... an example of many such documents which have been commonly used for many years which are designed to deal with the disposal of family assets in such a way that the trustees are furnished with the most ample powers of management and disposition of the settled fund coupled with maximum flexibility in the use of those powers, so as to accommodate the settled fund to emerging and ever-changing economic and revenue considerations.

1. The Court of Appeal in Mandie v Memart Nominees Pty Ltd observed that the trust in that case had been established for a long period of time and noted that the trust deed identified the persons who fell within the class of General Beneficiaries, with a very broad power to exclude General Beneficiaries. The Court concluded that the exercise of the exclusion power would reduce the pool of persons who were entitled to be considered for benefaction of both income and corpus under the trust.[57] The reduction of the pool is, of course, an inevitable consequence of such an exclusion.
2. The Court of Appeal ultimately concluded that there was simply no warrant to read down the generality of the power by confining it to an exclusion for cause in response to disentitling conduct.[58]

1. The approach endorsed by the Victorian Supreme Court and the Victorian Court of Appeal, as described above, should be applied by analogy to the present proceedings.
2. In the case of the FF Investment Trust, it must be emphasised that the discretionary power to exclude a beneficiary which is vested in the trustee pursuant to cl 3.3(1)(b) of the trust deed, is broadly stated. Other than formal requirements, there are no words of limitation or restriction. Nor should any be imposed.
3. It is also not necessary, in my view, for the trustee to rely upon, or to establish, disentitling conduct. The existence of conduct such as a conviction for murder, can be a relevant factor to the exercise of a power to exclude a beneficiary, but it is not decisive.
4. So, while I do not discount the first defendant's convictions for murder of three of the five persons for whom the trust was primarily intended to make provision in life, including the original Appointor, it is also highly relevant to the proposed exercise of the power by the trustee that:

(a) a substantial proportion of the financial resources of the FF Investment Trust have been applied to fund the first defendant's defence costs, leaving a modest net asset position in the trust; and

(b) having been served with the proceedings, the first defendant has elected not to oppose the relief which is sought.

1. Now that the first defendant has been convicted and has exhausted all avenues of appeal, it is not unreasonable, in my respectful opinion, for the trustee, having regard to the broad discretion conferred by the FF Trust Deed (when regard is had to cl 2.3(4)), to determine to cease making any further provision for the first defendant and to have the first defendant removed as a beneficiary.
2. In my view, on the affidavit evidence adduced by the plaintiffs, the exercise of the trustee's discretionary power, in the manner which is proposed, would represent an exercise of the power in good faith by the fourth plaintiff and for a purpose that is within the intended scope of the trust instrument established by BB.
3. It is therefore appropriate in the circumstances for the court to provide the judicial advice sought by the fourth plaintiff in its capacity as trustee.

I. Fifth issue - the FF Investment Trust (capital declaration) Overview

1. In the alternative, the fourth plaintiff seeks a declaration by paragraph 4(a) of the Originating Summons that, as the trustee of the FF Investment Trust, it has the authority under cl 5.1 of the FF Trust Deed to declare that the whole of the capital of the trust is solely held for the second defendant. The consequence of this would be that, on the termination of the trust, the whole of the trust capital would be held for the second defendant.
2. The relevant provisions of the FF Trust Deed are extracted below:[59]
   1. Capital

Until the trust is wound up, the Trustee holds the capital for the beneficiaries as follows:

(1) on or prior to the termination date; the whole or any part of the capital, is held for one or more of the beneficiaries as are then living or in existence (to the exclusion of others) in such shares or proportions as the Trustee in its discretion may from time to time determine in the manner provided in this clause; and

(2) on termination of the Trust; the capital available for distribution which has not been the subject of an effective determination pursuant to sub-clause 5.1 must be held for the beneficiaries named and in the manner described in sub-clause 14.2(4).

A determination of the Trustee pursuant to sub-clause 5.1(1) must be either:

(1) an irrevocable written declaration, instrument or resolution of the Trustee; or

(2) a written declaration, instrument or resolution of the Trustee made prior to the termination date and expressed to be revocable during a period ... which expires prior to the termination date. If it is not revoked before the expiration of the relevant period, it will become effective.

...

When a determination of the Trustee in favour of a beneficiary becomes irrevocable, the beneficiary will have an immediate indefeasible interest in the capital the subject of the determination. If the distributed capital continues to be held by the Trustee, the Trustee must hold it on a separate trust for the beneficiary.

1. The fourth plaintiff correctly submitted that, unlike the power conferred by cl 3.3(6) of the FF Trust Deed, the power granted by cl 5.1 is not subject to the approval or consent of the Appointor. Further, I accept the fourth plaintiff's submission that the trustee's discretion to make a determination under cl 5.1 is a broad one and must be construed having regard to cl 2.3(4) which (as noted above) provides that one of the primary purposes of establishing the trust is to give the trustee the widest possible discretion in the exercise of its powers.
2. It follows that I accept the fourth plaintiff's claim for declaratory relief in paragraph 4(a) of the Originating Summons. There being authority found in cl 5.1 of the FF Trust Deed to declare that the whole of the capital of the trust is solely held for the second defendant, it remains to consider whether the court should provide the fourth plaintiff with judicial advice that it would not be unreasonable or unjustifiable to exercise that authority.
3. In this regard, I consider the same matters to which I have referred in the context of the fourth issue above (at [71] to [93]), apply with equal force to support the granting of the judicial advice sought by the fourth plaintiff in respect of the fifth issue. I consider it appropriate to provide the fourth plaintiff with the judicial advice sought, and I propose therefore to grant the relief sought by the fourth plaintiff in paragraph 4(b) of the Originating Summons.

J. Suppression and restriction orders Background

1. Following an application made by the second defendant in October 2021, Kenneth Martin J made orders to impose a regime whereby the parties to this proceeding would be anonymised, his Honour's reasons would be suppressed on an interim basis, interlocutory hearings would be conducted in a closed court room, and access to documents filed with the court including the transcript would be subject to access restrictions pursuant to O 67B r 5 RSC.[60]
2. His Honour reserved for consideration of the judicial officer who was to preside at the final hearing whether that hearing should be conducted in open chambers or not, and whether the interim restrictions he imposed should continue, be varied or be discharged.[61]
3. The bases for the interim closed court order made by Kenneth Martin J are conveniently set out in his Honour's reasons at [46], [49], [66] and [69]. In essence, the reasons relied upon by the second defendant are as follows:

(a) First, a concern has been raised as to the physical safety of the second defendant based upon particular threats in the country where the second defendant presently resides.

(b) Second, concerns are raised over the second defendant's mental health, notwithstanding the strong recovery made by the second defendant from the injuries inflicted in the attack. This concern includes issues arising from social media reports about the second defendant, which has caused considerable distress to the second defendant.

(c) Third, concerns have been identified as to the second defendant's vulnerability given the financial circumstances and the legacy of the injuries suffered by the second defendant. It is submitted that these circumstances make the second defendant susceptible to so-called 'gold diggers'.

(d) Fourth, a broader concern has been raised as to the second defendant's privacy concerning the financial position of the second defendant.

1. The foregoing concerns were the subject of affidavit evidence before his Honour, which included the tender of a neuropsychological report dated 18 June 2021 and an affidavit sworn by a senior counsel from the country in which the second defendant resides. That senior counsel is the curator ad litem and curator ad personem of the second defendant.
2. At the directions hearing before me on 27 April 2023, my attention was drawn to the affidavit material and submissions which had been placed before Kenneth Martin J at the previous hearing. The second defendant also relied upon a further, more recent, affidavit sworn by one of the second defendant's solicitors. That affidavit made quite clear that news articles in relation to the second defendant and the murderous acts of the first defendant remain on the internet, and can be accessed through search engines.
3. Having regard to this material, and the submissions advanced by counsel, I made further interlocutory orders to continue the restrictions on access to documents on the court file and to accede to a regime of further orders as proposed by the second defendant to anonymise the names of the parties and various details of the matter. At the hearing, I also made an order that the question whether the final hearing of the proceedings be conducted in closed court be reserved by the court.
4. The view I ultimately took, prior to the hearing on 23 June 2023, was that the final hearing should be conducted in open court. However, as noted, I considered the regime for restricting access to the court documents filed by the parties, and to the transcript, should continue in force. Similarly, I was of the view, and remain of the view, that the process for anonymising the names of the parties should continue.
5. I will briefly explain my reasoning in this regard.

1. The restrictions upon access which have been imposed by the court to date were not, and are not, lightly made. The accepted starting proposition as a matter of common law is that justice must not be administered behind closed doors, and court proceedings must be exposed in their entirety to the cathartic glare of publicity.[62]
2. The starting point in considering an application to have proceedings heard in camera and to restrict access to documents filed with the court is to recognise the fundamental importance of the principle of open justice. In TK v Australian Red Cross Society,[63] Malcolm CJ recognised there can be exceptions from the principle of open justice.[64] However, his Honour observed that the circumstances in which the Court would depart from the fundamental principle of the public administration of justice would need to be very exceptional. His Honour further observed that:[65]

The onus on a party seeking public anonymity as a plaintiff or any other limitation on publicity with respect to proceedings must necessarily be heavy.

1. The application before Malcolm CJ in TK v Australian Red Cross Society did not seek orders that the proceedings be held in camera, only that the identities of the applicants should not be publicly disclosed. Nonetheless, the same principle underpins the analysis and the same considerations apply.
2. In XY v WA Country Health Service [No 2],[66] Pritchard J explained the proper approach to a decision whether to depart from the fundamental principle of open justice. Her Honour posited a two stage approach which first requires an identification of any competing interests which may warrant a departure from that principle, and then an undertaking of a balancing exercise which weighs those competing interests with the principle of open justice.
3. The exceptions to the principle were also recently explored by Smith J in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 22].[67] Her Honour made reference to the observations of French CJ in Hogan v Hinch,[68] in which his Honour the then Chief Justice explained the basis of the court's power to restrict the publication of proceedings conducted in open court and when that power might be exercised. His Honour first addressed the general principle:[69]

[20] An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute.

1. His Honour went on to address the exceptions to the general principle, by reference to the dictates of the proper administration of justice:[70]

[21] It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court's inherent jurisdiction or an inferior court's implied powers. This may be done where it is necessary to secure the proper administration of justice. In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could 'cause an entire destruction of the whole matter in dispute'. Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. In the prosecution of a blackmailer, the name of the blackmailer's victim, called as a prosecution witness, may be suppressed because of the 'keen public interest in getting blackmailers convicted and sentenced' and the difficulties that may be encountered in getting complainants to come forward 'unless they are given this kind of protection.' So too, in particular circumstances, may the name of a police informant or the identity of an undercover police officer. The categories of case are not closed, although they will not lightly be extended. Where 'exceptional and compelling considerations going to national security' require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified. The character of the proceedings and the nature of the function conferred upon the court may also qualify the application of the open-court principle. The jurisdiction of courts in relation to wards of the State and mentally ill people was historically an exception to the general rule that proceedings should be held in public because the jurisdiction exercised in such cases was 'parental and administrative, and the disposal of controverted questions ... an incident only in the jurisdiction'. Proceedings not 'in the ordinary course of litigation', such as applications for leave to appeal, can also be determined without a public hearing.

[22] It is a common law corollary of the open-court principle that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings.

...

[26] In my opinion the better view is that there is inherent jurisdiction or implied power in limited circumstances to restrict the publication of proceedings conducted in open court. The exercise of the power must be justified by reference to the necessity of such orders in the interests of the administration of justice ...

1. The matters identified by Kenneth Martin J, which I have summarised above, provide support, in my respectful view, for the making of orders to restrict access to documents and to anonymise the names of the parties. In particular:

(a) the physical safety of the second defendant; and

(b) the potential for the particular threats in the second defendant's country of residence to materialise,

present as valid and serious concerns on the part of those who presently represent the interests of the second defendant. I also take judicial notice that there is a considerable degree of civil unrest in the country in which the second defendant is presently resident, which provides a heightened risk for the safety of the second defendant.

1. Further, the medical concerns expressed as to the second defendant's mental health, which may be impacted by the further ventilation of these matters are of significance, in my assessment, and properly bear on the question whether a regime should be ordered which limits or restricts the open justice principle. It might be thought that, as time moves on, the impact on the second defendant will gradually recede. Some years have now elapsed since the murders were committed and the second defendant sustained significant injuries. Nonetheless, I am not prepared to accept that the impact on the second defendant has diminished to a point that this concern may be put to one side. I would prefer to adopt a cautious approach in this regard, given the nature and extent of the injuries suffered by the second defendant.
2. I would, in contrast, give far less weight to the second defendant's general privacy concerns as to the second defendant's financial position, and the second defendant's susceptibility to advances from opportunistic persons with dishonest desires, seeking to exploit the second defendant. These are not matters which on their own present as sound bases for imposing restrictive measures on the publication of court proceedings or precluding access to court documents.
3. The matters to which I have referred at [113] and [114] above justify the continued suppression of Kenneth Martin J's previous reasons (which contain various references to the names of the parties and other identifying details), the regime for publishing these reasons in an anonymised format, and for restricting access to documents. Those measures of protection are sufficient in my view to serve the proper administration of justice, informed in this case by the concerns for the physical safety and mental health of the second defendant, which I consider are real and of substance.
4. In these circumstances, it was unnecessary to go further and require that the final hearing of the matter be conducted in a closed court, and it is unnecessary to order that these reasons be suppressed. The circumstances are not so exceptional and compelling as to demand that these steps be taken. An important factor which tells against the imposition of any further layer of restrictions is that the applications before the court are brought by trustees and executors to disturb or modify the entitlements of a beneficiary. It is proper that applications of such a nature be conducted, to the extent possible, in open proceedings which may be subjected to public and professional scrutiny.
5. That said, I am prepared to delay the formal publication of these reasons for a suitable period to afford the advisers to the plaintiffs and the second defendant an opportunity to consider these reasons, and seek such further orders as they may see fit to do.

1. For the foregoing reasons, I propose to grant the relief sought by the plaintiffs in the Originating Summons. I will hear from counsel as to the precise form of the final orders which should be made including as to costs and as to the publication of these reasons.

1. The court notes that a draft copy of the Court's reasons was provided to the solicitors for the parties on 23 February 2024 to allow the parties the opportunity to consider those reasons, as is noted in [118] above. I made orders to the effect that the formal publication of the reasons for decision be deferred until further order of the Court, and listed the matter for a directions hearing on 22 March 2024 to hear submissions from the parties in relation to the publication of the reasons for decision.
2. On 23 February 2024, I made formal orders to grant the relief sought by the plaintiffs in the Originating Summons. The orders made by the Court are set out in Attachment B to these reasons.
3. Following a review of the reasons, the solicitors for the second defendant proposed further minor changes to the draft reasons for the purpose of better ensuring the anonymity of the parties and the matters which are the subject of these proceedings. Having considered those further minor changes, I formed the view that some amendments were required to these reasons which were made prior to formal publication of the reasons on 22 March 2024.

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

[1] AA as executor of the estate of BB v XX [2021] WASC 455.

[2] Plaintiffs' further submissions dated 6 July 2023; and Second Defendant's Outline dated 10 July 2023.

[3] First Executor Affidavit, [12] and Attachments 6 and 7.

[4] First Executor Affidavit, [14] - [15].

[5] Third Executor Affidavit, [8] and ts 40.

[6] First Executor Affidavit, [16] - [21] and Attachment 1, and [29] - [35] and Attachment 2.

[7] First Executor Affidavit, [22] and Attachment a.

[8] First Executor Affidavit, [30] and Attachment 2.

[9] This factual point was clarified by counsel during the course of the hearing: ts 40.

[10] First Executor Affidavit, [40] - [50] and Attachment 18.

[11] Item 6 of the Trust Details Schedule to the Trust Deed and the definition of 'Specified Beneficiaries'.

[12] Item 7 of the Trust Details Schedule to the Trust Deed and the definition of 'General Beneficiaries'.

[13] Solicitor's Affidavit, Attachment 2.

[14] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 [58], [162] (Gummow ACJ, Kirby, Hayne and Heydon JJ); Wood (As CoExecutor and Trustee of the Will of the Deceased) v Wood [No 4] [2014] WASC 393 [4] (Kenneth Martin J); Blatchford v Laine [2018] WASC 207 [57] (Vaughan J).

[15] Tsaknis v Lilburne [2010] WASC 152 [38] (E M Heenan J); In re Atkinson (dec) [1971] VicRp 73; [1971] VR 612, 615.

[16] Pacella v Sherborne [2009] WASC 58 [12] (Master Sanderson).

[17] Public Trustee (WA) v Mack [2017] WASC 325 (Master Sanderson).

[18] Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 709 (Dixon, Evatt and McTiernan JJ).

[19] In the Estate of Crippen Deceased [1911] UKLawRpPro 4; [1911] P 108, 112 (Sir Samuel Evans P).

[20] In the Estate of Hall Deceased [1913] UKLawRpPro 28; [1914] P 1.

[21] Dunbar v Plant (1998) Ch 412 (English Court of Appeal); Beresford v Royal Insurance Co Ltd [1938] AC 586 (House of Lords).

[22] Re Plaister; Perpetual Trustee Co Ltd v Crawshaw [1934] NSWStRp 18; (1934) 34 SR (NSW) 547.

[23] Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147.

[24] In the Estate of Crippen Deceased.

[25] In the Estate of Crippen Deceased (112).

[26] Beresford v Royal Insurance Co Ltd (595).

[27] Troja v Troja (1994) 33 NSWLR 269.

[28] Edwards v State Trustees Ltd [2016] VSCA 28; (2016) 54 VR 1.

[29] Permanent Trustee v Gillett (2004) NSWSC 278; (2004) 145 A Crim R 220.

[30] Re Settree Estates; Robinson v Settree [2018] NSWSC 1413; (2018) 98 NSWLR 910.

[31] Savage as Executor of the Will of Edward Erle Savage (Deceased) [2023] QSC 280.

[32] Challen v Challen [2020] EWHC 1330 (Ch).

[33] Specifically, the decision of Whelan JA with whom Kyrou JA agreed.

[34] Re Peacock; Midland Bank Executor and Trustee Co v Peacock [1957] Ch 310.

[35] Permanent Trustee v Gillett [23] ‑ [24] (Austin J).

[36] Permanent Trustee v Gillett [23] ‑ [24] (Austin J).

[37] First Executor Affidavit, [40] - [50] and Attachment 18.

[38] Plaintiffs' submissions dated 30 May 2023, [ 57] - [72].

[39] Mercanti v Mercanti [2016] WASCA 206; (2016) 340 ALR 290 [68] - [76] (Buss P).

[40] Mercanti v Mercanti [80] (Buss P).

[41] Mercanti v Mercanti [245] (Buss P).

[42] By reason of cl 3.3(3) when read with cl 3.3(6) of the FF Trust Deed.

[43] Plaintiffs' submissions dated 30 May 2023, [85] - [87].

[45] Plaintiffs' further submissions dated 6 July 2023; and Second Defendant's Outline dated 10 July 2023.

[46] EEU20 v Meat Industry Employees' Superannuation Fund Pty Ltd [2020] FCA 1359.

[47] EEU20 v Meat Industry Employees' Superannuation Fund Pty Ltd [77] - [82].

[48] Curwen v Vanbreck Pty Ltd [2008] VSC 338 [80] (Mandie J).

[49] Mandie v Memart Nominees Pty Ltd [2020] VSCA 281; (2020) 62 VR 528 [183] (Tate, Niall and Emerton JJA). An application for special leave was subsequently dismissed by the High Court.

[51] Karger v Paull [1984] VicRp 13; [1984] VR 161, 163 - 164.

[55] Kearns v Hill (1990) 21 NSWLR 107.

[57] Mandie v Memart Nominees Pty Ltd [240].

[58] Mandie v Memart Nominees Pty Ltd [243].

[59] First Executor Affidavit, [40] - [50] and Attachment 18.

[60] AA as executor of the estate of BB v XX [2021] WASC 455 and orders made 27 December 2021.

[61] AA as executor of the estate of BB v XX [124].

[62] David Syme & Co Ltd v General Motors-Holden's Ltd [1984] 2 NSWLR 294, 300 (Street CJ).

[63] TK v Australian Red Cross Society (1989) 1 WAR 335, 336 (Malcolm CJ).

[64] TK v Australian Red Cross Society (336 - 337).

[65] TK v Australian Red Cross Society (337).

[66] XY v WA Country Health Service [No 2] [2016] WASC 245.

[67] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 22] [2023] WASC 285.

[68] Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506.

[69] Hogan v Hinch [20] (footnotes omitted).

[70] Hogan v Hinch [21] - [26] (footnotes omitted).