AUSTRALIAN EXECUTOR TRUSTEES LTD (AS TRUSTEE OF THE WESTFIELD STATION TESTAMENTARY TRUST) -v- HEROC PTY LTD AS TRUSTEE OF THE WESTFIELD STATION TRUST [2026] WASC 118 (10 April 2026)

1. It is appropriate to begin with a brief description of this judicial advice proceeding, CIV 2291 of 2025 (judicial advice application). It arises out of what the parties have referred to as the 'partnership proceeding', which was a proceeding in this court in CIV 2415 of 2023.
2. The partnership proceeding was an action between two trusts created by the late Mr John Roche. One trust was created inter vivos, the Westfield Station Trust (WST). The second trust was created by the will of Mr Roche made in 2006, the Westfield Station Testamentary Trust (WSTT).
3. Mr Roche had extensive interests both in South Australia and Western Australia. The subject matter of the partnership proceeding was a valuable farming asset in Western Australia generally known as Westfield Station.
4. In support of the judicial advice application, the plaintiff has filed an affidavit of Mr Edward Ronald Scott sworn on 12 November 2025 which sets out the background.

1. Mr Roche died in April 2010, at which time the WSTT became operative. Westfield Station was owned and operated by a partnership between the two trusts, the WSTT and the WST. WSTT owns 52 per cent of Westfield Station. The other 48 per cent is owned by WST.
2. The background of the partnership proceeding arises in the following way. The plaintiff is the Australian Executor Trustees Ltd (AET). The plaintiff was appointed the trustee of the WSTT in September 2022. Prior to that, the trustee of the WSTT was Westfield Station Nominees Proprietary Limited (WSN). WSN is the second defendant to the judicial advice application.
3. The trustee of the intervivos trust, WST, is Heroc Pty Ltd (Heroc). Heroc is the first defendant to the judicial advice application.
4. As I have observed, the Westfield Station property and farming operation was carried on as a partnership between the two trusts. Prior to the appointment of the plaintiff as trustee of the WSTT, the partnership was carried on by the previous trustee WSN, and Heroc, in the same proportions - approximately 52 per cent and 48 per cent respectively.
5. The appointment of the plaintiff as trustee of the WSTT in 2022 arose from proceedings in the Supreme Court of South Australia between various entities and family members associated with Mr Roche. The plaintiff was appointed with the agreement of the parties to the action in the Supreme Court of South Australia. The plaintiff is an independent commercial trustee company. What distinguishes AET from the previous trustee (and from Heroc) is that it is not controlled by family members of Mr Roche.
6. In the partnership proceeding, Heroc claimed that by reason of the appointment of a trustee to the WSTT that was independent of the Roche family, a right to terminate the partnership arose under the relevant partnership deed. Heroc claimed that under the partnership agreement, this in turn triggered an entitlement in favour of Heroc to purchase the 52 per cent interest of the WSTT in Westfield Station, on particular terms.
7. Those terms involved some complication; but relevantly for present purposes, it entailed instructions to an accountant to prepare the value at which the option could be exercised. There is contention about whether the option right subsisted and whether the value was properly calculated. But it seems to be common cause that the right to purchase the station pursuant to that option (if there was one) was extremely advantageous to Heroc. This is because, at least on Heroc's position, it entitled Heroc to purchase the 52 per cent interest in Westfield Station at a value significantly less than its market value.
8. Heroc purported to exercise that option.
9. The WSTT (and indeed other interests associated with the Roche family), took the position that Heroc was not entitled to exercise the option for various reasons that are not presently material. In pursuit of that position, AET issued the partnership proceeding. In the partnership proceeding, AET denied that the option was exercisable. AET sought declaratory and injunctive relief to prevent the transfer of the 52 per cent interest of the WSTT in Westfield Station to Heroc on the advantageous terms that Heroc sought to enforce. AET also sought an order to wind up the partnership under the Partnership Act 1895 (WA), with the sale of the Westfield Station assets on the open market.
10. The parties to the partnership proceeding were therefore: AET (the plaintiff in this proceeding) as trustee of the WSTT; and Heroc (the first defendant in this proceeding) as trustee of the WST.
11. The partnership proceeding was prepared and listed for trial, and was due to be heard in March 2025.
12. The hearing was scheduled to be held for five days from 17 to 21 March 2025 before her Honour, Whitby J. On Friday 14 March 2025, the parties reached an in-principle conditional resolution of the partnership proceedings and recorded those terms in a deed of settlement. Following the deed, the trial dates were vacated and have been listed at successive deferred dates in order to accommodate the fulfilment of various conditions precedent contained in the deed of settlement.

1. The judicial advice application brought by the plaintiff under s 92 of the Trustees Act is for directions that the trustee (AET) is justified in entering into the compromise of the partnership proceeding.
2. One of the pre-conditions of the settlement of the partnership proceeding is the obtaining by AET of judicial advice from this court that it is justified in entering into the settlement agreement. That is the basis of the judicial advice application.
3. Although the compromise was reached in mid‑March 2025, the application for judicial advice was first brought on 12 November 2025. I was advised by senior counsel for the plaintiff that this was because there were other preconditions or matters under the terms of settlement that had to be attended to before the application for judicial advice could be brought. I have not had an opportunity to examine the details of that.

1. AET joined parties in addition to Heroc to the judicial advice application, because there were others who were not party to the partnership proceeding but who had an interest in the WSTT (see s 92(2) of the Trustees Act).
2. Mr Roche had three daughters: Deborah, Fiona and Shauna. At various stages, they have all been directors of the very many entities associated with Mr Roche and have been, to one extent or another, actively involved in the various matters which are the subject of these (and other) proceedings.
3. Deborah is the third defendant in the judicial advice application. Fiona is the fourth defendant in these proceedings, and Shauna is the fifth defendant. For reasons that are not material, Shauna appears to have taken a lesser role in the Westfield Station property and the matters the subject of these proceedings. Of Mr Roche's daughters, only the third defendant, Deborah, has children. They are Airlie Victoria Roche Hamilton and Alexandra Mary Roche Hamilton (the granddaughters). They are respectively the sixth and the seventh defendants in this proceeding.
4. Section 92(2) of the Trustees Act provides that an application made under that section 'shall be served upon, and the hearing may be attended by, all persons interested in the application or such of them as the Court thinks expedient'. I will return to the significance of that in due course, but for present purposes, I mention that to explain why it is that the application for judicial advice has many more parties than the partnership proceeding. That is because the plaintiff - quite correctly - joined not only the other party to the partnership proceeding (Heroc), but a range of other parties. This includes WSN (the previous trustee of the WSTT), and various members of the late Mr Roche's family who have an interest in the WSTT, primarily for present purposes as discretionary beneficiaries.
5. The granddaughters are the sole specified beneficiaries of the WSTT. Mr Roche's daughters, by virtue of being the mother or the aunts of the granddaughters, are (possibly together with others) all general beneficiaries of the WSTT.
6. Deborah's full name is Deborah Ann Hamilton, and she is married to the eighth defendant, Mark Eric Hamilton, who has been an active participant in the judicial advice application and has sworn most of the affidavits in support of the interlocutory applications.

1. The parties to this proceeding are in dispute as to the proper character and effect of the settlement of the partnership proceeding.
2. AET summarised the compromise at paragraph [31] of its written submissions dated 11 February 2026 as follows:[1]

Broadly, the Deed of Settlement contemplates a compromise, pursuant to which:

(a) the WSTT's 52.041% partnership interest will be sold at market value (as determined by independent valuations) to a newly incorporated entity (NewCo) owned indirectly by John Roche's daughters, the third (Deborah), fourth (Fiona) and fifth (Shauna) defendants, each of whom are general beneficiaries of the WSTT;

(b) the sale price is to be paid partly in cash (to meet identified liabilities and a $500,000 contingency payment to cover further expenditure by AET) and partly via vendor finance and a promissory note;

(c) the sale proceeds will be applied in the manner prescribed by the Deed of Settlement, subject to (but without fettering AET's discretion) AET resolving to distribute:

(i) $4.4 million each to Airlie and Alexandra; and

(ii) (ii) the balance of the trust fund to NewCo;

(d) the partnership will be wound-up and (after distributions and discharge of liabilities) the WSTT will be vested; and

(e) the Partnership Proceeding will then be dismissed, with each party bearing their own costs. (footnotes omitted)

1. The granddaughters contend for a different complexion of the settlement deed than is asserted by AET and Heroc. In short, the granddaughters complain that, properly understood, the settlement amounts to a capitulation by AET on behalf of the WSTT. In particular, the granddaughters contend that when properly understood, the settlement channels the true value of the WSTT's 52 per cent interest in Westfield property not to the specified beneficiaries who ought to be the ultimate beneficiaries of the WSTT (that is, the granddaughters themselves), but rather to Mr Roche's three daughters. In that way, the granddaughters contend that the settlement achieves in substance the very commercial strategy sought by Heroc through the exercise of the option which the partnership proceeding was designed to prevent.

1. More recently, the first defendant, Heroc, brought its own application for judicial advice under s 92 of the Trustees Act. Heroc also seeks the court's direction that as trustee of the WST, it too is justified in entering into the same compromise. There is, at this stage, some suggestion that those two matters ought to be heard together; but that is not a matter I am dealing with at the moment.

The granddaughters' position on AET's judicial advice application and request for documents

1. The granddaughters have indicated in very plain terms that they oppose the directions sought by AET and intend to make comprehensive submissions about that when the judicial advice application is brought on for substantial hearing.
2. My focus in these reasons is upon the granddaughters because they are the applicants in respect of the interlocutory applications. The granddaughters, as noted, are the discretionary specified beneficiaries of the WSTT, of which the plaintiff is the trustee.
3. On 24 November 2025, the lawyers for the granddaughters wrote to the lawyers for AET. In that letter, the granddaughters through their lawyers requested inspection and the opportunity to make copies of a range of classes of documents described in some detail over six pages of that letter. The request was made expressly pursuant to s 84B of the Trustee Act 1936 (SA) (Trustee Act (SA)) and the general law relating to the right of beneficiaries to inspect and copy trust records.
4. The judicial advice application came before me for directions on 16 January 2026. In that hearing, applications for production of documents by the granddaughters against various other parties to CIV 2291 of 2025 were foreshadowed. I made orders that any such application, together with supporting affidavits and submissions, were to be filed by 30 January 2026.
5. On 29 January 2026, the lawyers for the granddaughters wrote to the lawyers for the first defendant, Heroc. That letter referred to the judicial advice proceeding to which the granddaughters had been joined. The letter was said to be written in relation to a breach of fiduciary duties by Heroc as trustee of the WST by entering into the settlement the subject of AET's judicial advice application. It was also asserted in that letter, in unqualified terms, that the only available inference is that the directors of Heroc were knowingly involved in a dishonest and fraudulent design by Heroc in the meaning of the second limb of Barnes v Addy.[2]
6. The purpose of the letter was also to request documents. In a similar vein to the request made of AET, the request was made of Heroc under s 84B of the Trustee Act (SA) and under the general law. The letter acknowledged that the request would not give the first defendant the opportunity to consider the request by the time the applications were required to be filed under the orders of the court on 30 January 2026.
7. The letter went on to detail the allegations made against the first defendant at some length. The letter then set out the documents sought, which, broadly speaking, related to two periods of time. The first was the period between 1 July 2022 and 31 December 2022, which is the period relating to the appointment of AET as the new trustee of the WSTT. The second was documents in the period between 1 February 2025 and 31 March 2025, the period in which the compromise was negotiated and reached.
8. On 29 January 2026, the lawyers for the granddaughters also wrote to the lawyers for the fourth defendant, Fiona Roche. The purpose of the letter was said to be in relation to the failure of Fiona Roche to comply with her duties to protect the interests and property of WSN (the former trustee of the WSTT) in her dealings with the partnership agreement. The purpose was to advise that the granddaughters would be applying for orders that the fourth defendant, Fiona Roche, make discovery in the judicial advice application for the categories of documents identified in the letter.
9. The letter goes on to set out relevant background and detail the allegations made. That was done in some considerable detail. The letter then set out the orders for discovery sought by the granddaughters from Fiona Roche. The proposed orders included categories of documents in relation to various periods. One was 1 July 2022 to 31 December 2022. The second was 1 May 2023 to 1 December 2023, and the third is the period 1 December 2023 to 31 January 2024. Those periods are said to be the periods of time that relate to the allegations levelled against Fiona Roche in respect of various breaches of trust, alleged in the letter.
10. In accordance with the court's orders, the granddaughters filed a number of interlocutory applications on 30 January 2026 for the production of documents. An application for restriction to access was subsequently filed by the granddaughters on 5 February 2026.
11. None of the applications were accompanied by a memorandum of conferral as required by O 59 r 9 of the Rules of the Supreme Court 1971 (WA) (RSC). Indeed, it is not evident that any meaningful conferral took place. Having said that, it is fair to say that it is equally apparent that conferral may not have produced a resolution. It is possible, however, that conferral may have at least narrowed the very broad classes of documents that are sought in aggregate across these various applications.

1. Various motions were filed by the sixth and seventh defendants on 30 January 2026, broadly speaking, for the production of documents. They were as follows.
2. A notice of motion was filed seeking an order for production by the plaintiff to the sixth and seventh defendants. The application was supported by an affidavit of Mark Eric Hamilton sworn on 30 January 2026.
3. The application sought the documents at general law and under s 84B of the Trustee Act (SA). Documents sought were those described in the letter of 24 November 2025 sent to the lawyers for the plaintiff that I have referred to. I observe that the documents were not sought pursuant to the discovery processes in this court in relation to the judicial advice proceedings, but rather pursuant to what was said to be substantive entitlements of the sixth and seventh defendants as discretionary beneficiaries of the WSTT.
4. In opposition to the application made by the granddaughters and in support of their written submissions opposing the production application, the plaintiff filed an affidavit of Patrick John Tydde sworn on 11 February 2026.
5. A notice of motion was also filed seeking an order for production by the first defendant to the granddaughters, consistent with the request by correspondence of 29 January 2026. This notice was supported by another affidavit of Mark Eric Hamilton sworn on 30 January 2026, and an affidavit of Mark Eric Hamilton sworn on 23 February 2026. An affidavit of Deborah Ann Hamilton sworn on 20 February 2026 was also filed in support of the application and in response to the first defendant's written submissions in reply.
6. This application was also made under the general law and under s 84B of the Trustee Act (SA). The documents were sought pursuant to the substantive rights of the granddaughters as discretionary beneficiaries of the WST. The documents sought were those in the letter of 29 January 2026 to the first defendant.
7. It is to be noted that the WST is not the trust whose trustee is seeking the advice in the judicial advice application before me.
8. A notice of motion was also filed seeking an order for discovery in the judicial advice application under O 26 r 1 of the RSC from the fourth defendant. This notice was supported by a further affidavit of Mark Eric Hamilton sworn on 30 January 2026.
9. The documents sought were those set out in the letter from the granddaughters' lawyers of 29 January 2026 to the fourth defendant.

1. A further notice of motion was filed on 5 February 2026 seeking orders under O 67B of the RSC to restrict access to the notices of motion in respect of production of documents by the plaintiff and the first defendant. This was supported by an affidavit of Mark Eric Hamilton sworn on 5 February 2026.
2. It emerged in oral submissions that the intended effect of this notice of motion was that the granddaughters sought orders that:

(1) the application for documents from the plaintiff would only be heard in the presence of the sixth and seventh defendants and the plaintiff;

(2) the application in respect of the first defendant would only be heard in the presence of the sixth and seventh defendants and the first defendant; and

(3) the documents sought would be confidential only to those parties respectively.

1. I will deal with the application for restriction of documents first, and then the various applications for production of documents.

1. I observe at this point that the application for restriction was also brought without any memorandum of conferral, and indeed, it appears, without any substantive conferral. Moreover, the notice of motion was cast in the broadest of terms. It was not apparent from the notice of motion that any thought had been invested in seeking to confine the documents over which there really was a concern about confidentiality.
2. Further, as stated above, the affidavit in support of the restriction was the affidavit of Mark Eric Hamilton sworn on 5 February 2026. That affidavit was a brief one-and-a-half-page affidavit. Above [4] of that affidavit there was a heading, 'Reason for restriction'. The affidavit then stated at [4]:[3]

On advice from counsel, the sixth and seventh defendant consider that there are good reasons why access to each of the Heroc Documents Notice of Motion and the AET Documents Notice of Motion and the respective supporting affidavits and accompanying submissions ought to be restricted and that only the sixth defendant and the seventh defendant and each respective party should be present and heard on each Notice of Motion.

1. In terms of reasons, it was said that: 'It is intended that counsel for the sixth and seventh defendant will address the court of these reasons on the hearing of this restriction Notice of Motion.'[4]
2. That was all that was provided to the court in advance of the hearing in relation to the restriction application. My concern that not only had there been no conferral, but that inadequate consideration had been given to the application of what is a serious imposition on access to documents, was confirmed in the hearing of 25 February 2026, when I sought to understand the basis for that application. It emerged that there was really only one document in respect of each of the first defendant and the plaintiff about which there was a concern. I heard the concerns in relation to the one document regarding the first defendant. The nub of the concern was that if the judicial advice were not given as sought, or for whatever other reason the settlement fell over, it would be unfairly advantageous to the plaintiff (AET) and disadvantageous to the first defendant (Heroc) if a particular document contained in the affidavit in support of the application for production of documents by the first defendant was made available to the plaintiff.
3. Senior counsel for the first defendant made it clear his client was untroubled by the disclosure of that document. The basis for the application was potential prejudice to the first defendant. That concern was expressly disavowed by the first defendant.
4. I declined to make any order for restriction. The application for restriction in respect of the one further document was not thereafter pursued.
5. Accordingly, the formal orders I will make in relation to the notice of motion relating to the restriction of documents is that the applications contained in that notice of motion will be dismissed.

1. I turn then to the more complicated applications, which are the applications for the production of documents. I will deal with the basis for the documents sought in the order in which they were argued; that is, the first defendant, then the fourth defendant, and then the plaintiff.
2. In respect of all the applications, the granddaughters point to the fact that the affidavit filed on behalf of AET in the judicial advice application states that AET considers that the compromise is in the best interests of the beneficiaries of the WSTT. In broad terms, the granddaughters contest that assertion. As noted, they intend to oppose the application for judicial advice on that basis, which has various limbs.

1. As I have observed, the production of documents by Heroc was sought pursuant to the substantive rights of the granddaughters as beneficiaries of WST, the trust of which the first defendant, Heroc, is the trustee. As to how that is relevant to AET's judicial advice application, counsel for the granddaughters, in carefully considered and comprehensive submissions, explained the various contentions that the granddaughters seek to advance against the first defendant (and, indeed, the fourth defendant, which I will come to) in relation to various matters.
2. Relatedly, the granddaughters also contended that the documents were sought on the basis that they had foreshadowed an application under s 94 of the Trustees Act for a review of Heroc's decision to enter into the compromise. It was said in written submissions in support of the application for production of documents that the application:[5]

[I]s to obtain information from Heroc which will enable Airlie and Alexandra to be in a position to put before the Court material upon which the Court may undertake a s94 review of the decision by Heroc to dispose of the fruits of the exercise of its option, for no benefit to the WST, and whether the approval of the compromise will result in AET being involved in a breach of trust by Heroc.

1. In broad terms and as a brief overview, it is also contended by the granddaughters that Heroc participated in the arrangement that led to the orders of the Supreme Court of South Australia appointing AET as trustee to the WSTT. It is alleged that Heroc did so in the belief that it would give Heroc a very valuable right to its advantage (the option to purchase WSTT's 52 per cent interest), and to the disadvantage of its partner in the farming partnership (that is, the WSTT), to whom it owed fiduciary obligations. That was broadly the basis for the request for documents in relation to the period of time relating to the appointment of the AET as the trustee.
2. The second allegation, put in very broad terms, related to the period of the compromise. It was said that the compromise, when properly understood, amounted to Heroc having engaged in or having been involved in a breach of trust by the entry into the compromise itself.

1. In relation to the documents sought to be produced by the fourth defendant, counsel for the granddaughters again, very carefully and ably took the court through a range of documents. The documents were in support of contentions that the fourth defendant had also engaged in various breaches. These breaches were said to arise from the fourth defendant's involvement in the appointment of AET through the Supreme Court of South Australia, Heroc's purported exercise of the option, and its entry into the compromise. I will return to these allegations later.
2. In respect of both the first defendant and the fourth defendant, and indeed to some extent the plaintiff, a primary complaint of the granddaughters is that the ultimate effect of the settlement will be to deliver the true value of the Westfield Station to an entity in which the three daughters of John Roche will be ultimately entitled to the Westfield Station. That is to be contrasted, the granddaughters say, with the position that would have prevailed had the plaintiff proceeded with the partnership proceedings and succeeded. In that case, the WSTT's interest in Westfield Station would have been ultimately preserved for the benefit of the granddaughters alone as the sole specified beneficiaries, in accordance, they say, with the true intentions of the testator or settlor.
3. I will return to some of the detail of that in relation to the documentation application regarding the plaintiff.
4. Returning to the allegations made in respect of the fourth defendant, counsel for the granddaughters helpfully summarised those allegations, insofar as they were relied upon, in the application for discovery from the fourth defendant.
5. As I understood counsel's summary, the granddaughters allege that the conduct of Fiona Roche, in breach of her duty as the director of WSN, caused WSN not to prevent the appointment of AET as trustee. This led to Heroc purporting to have the option which it sought to uphold in the partnership proceedings.
6. The second allegation is that the conduct of the fourth defendant at the time of Heroc instructing the accountant to assess the option price was also a breach of duty to WSN. Fiona Roche knew about that because she was also a director of Heroc. She could therefore have, or ought to have, prevented the appointment of the accountant. This was because the instruction to the accountant was inconsistent with the requirements of the partnership agreement, and would be at a valuation that was prejudicial to Heroc's partner (WSN) to whom Heroc owed fiduciary obligations. Fiona was in a position of inescapable conflict.
7. It was also alleged by reason of the same circumstances, that Fiona Roche was knowingly concerned in a breach by Heroc of its fiduciary duties to its partner WSN. It was further alleged that Fiona Roche's failure as a director of WSN to object to the accounts when presented by the accountant was a further breach of duty, and that Fiona Roche's participation in arranging in the exercise of the option by Heroc similarly amounted to a breach of duty.

1. As to the production of documents sought from AET, the overarching submission from the granddaughters was that they need the documents to demonstrate that the trustee has not taken account of relevant matters in its decision to enter into the compromise. These matters concern the risks and prospects of the partnership proceedings. It also included other matters, such as AET ceasing to hold a capital asset, and the propriety of distributions by the WSTT proposed by the compromise.
2. It was also alleged that the plaintiff was possessed of knowledge which meant that it was a party to, or knowingly concerned in some way with, the breaches of trust constituted by the entry into the compromise by Heroc. Referring to the various breaches asserted to have been committed by WSN, the granddaughters also submitted that it would be necessary to consider the extent to which AET had considered its rights arising from those breaches. That was a proper matter for consideration in the judicial advice application.
3. The granddaughters contended that all of those matters go to their ability to test the assertion of whether the compromise is in the interests of the beneficiaries of WSTT.
4. A central theme of the granddaughters' position was their contention that, properly understood and construed, the value of the WSTT was intended ultimately to benefit them, as distinct from the testator's daughters. The granddaughters are firmly of the view that because the compromise does not reflect that intention, the decision to enter into the compromise was not a proper exercise of the lawful discretion of the trustee. In other words, they say that the entry into the compromise itself is an improper exercise of the trustee's discretion, properly understood and construed.
5. In respect of all the above allegations, the granddaughters contend that they ought to be entitled to documents to advance those assertions and allegations in opposition to the judicial advice application.

1. I observe at this point that, notwithstanding the very comprehensive and ably articulated contentions on behalf of the granddaughters against AET, Heroc, and Fiona Roche, no proceedings in respect of any of those allegations have been issued. This includes the application under s 94 of the Trustees Act relied upon for the document production.

1. The question for me is not whether any of those allegations are arguable or cogent. The question for me is whether the allegations provide a basis in this judicial advice application, for ordering production from the first defendant and the plaintiff pursuant to the granddaughters' substantive rights as beneficiaries of the respective trusts, and from the fourth defendant as discovery in this proceeding.
2. In order to consider that issue, it is necessary to look at the nature of the judicial advice application under s 92 of the Trustees Act.
3. Section 92(1) of the Trustees Act says: 'Any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee.'
4. The leading case on s 92 and its statutory equivalent in other jurisdictions is the High Court decision of Macedonian Orthodox Community Church.[6] I will refer to some important aspects of that decision.
5. In [54] of Macedonian Orthodox Community Church, the plurality (Gummow ACJ, and Kirby, Hayne and Heydon JJ) set out what they said were 'eight general points' about the relevant statutory provision, which in that instance was s 63 of the Trustee Act 1925 (NSW). The plurality said, first, that implications were not to be read in, and second, that there were no implied limitations on discretionary factors.[7]
6. The relevance of that in context was that the Court of Appeal of New South Wales had overturned the first instance decision of Palmer J to give advice on the basis that, in the broadest of terms, the proceedings were adversarial and therefore were not appropriate for judicial advice. The High Court rejected that and said that the adversarial context in which the application arose was not a reason to decline advice.
7. The High Court continued at [61] to explain that historically, an application for judicial advice is a procedure with a 'summary character'.[8] That remains the position.
8. The High Court also went on to explain that the procedure is not an ordinary inter partes application, but rather is private and personal advice sought and, if successful, obtained by the trustee for its protection and for the protection of the trust.[9] In that regard, the High Court pointed out at [65] that the parties joined are not, strictly speaking, parties to proceedings in the ordinary way, although they are able to participate in the proceedings to some extent. Section 92, the High Court said, 'reflects a compromise between a procedure for affording private advice to trustees and the need for affected persons to be given a hearing in some cases'.[10]
9. At [80], the High Court observed that the judge at first instance was right not to permit the contested allegations in an adversarial context to be fully ventilated in the judicial advice proceeding.[11]
10. The question of the proper approach to judicial advice has also been considered in many other cases, including cases in this jurisdiction.
11. In Australian Executor Trustees v Attorney General, Martin CJ set out the relevant principles, referring also to the High Court case of Macedonian Orthodox Community Church.[12] I refer in particular to the Chief Justice's comments at [32] and [33]:[13]

All members of the High Court in the case to which I have referred considered that the powers conferred by provisions like s 92 of the Act should generally be exercised for the purposes for which they are conferred, which are the protection of the property of the trust and the protection of a trustee acting properly and in accordance with the directions of the court. Subject to conformity with those overarching purposes, the exercise of the powers conferred by such provisions is discretionary and will depend upon the particular facts and circumstances of each case, unconstrained by inflexible rules or prescriptive standards.

Nevertheless, the cases do provide some guidance with respect to the exercise of the discretion conferred upon the court. In exercising its powers, the court will generally endeavour to act in the best interests of the beneficiaries of the relevant trust and, where appropriate, will take account of the views of those beneficiaries. Further, ordinarily the court will not exercise its jurisdiction in such a way as to usurp the roles and responsibilities of trustees in relation to the making of commercial decisions or with respect to the conduct of litigation. Rather, the court will be concerned to ensure that the trustee has taken proper advice and given full consideration to all relevant matters before arriving at a reasoned and appropriate decision. If satisfied of those matters, in appropriate cases the court will give the directions sought and thereby confer protection upon a trustee taking action in accordance with those directions. (footnotes omitted)

1. I refer also to [40] and [47]:[14]

That is because the Trustee does not ask the court to assess the legal or commercial propriety of the terms of the proposed settlement generally. Rather, the application for directions is brought in reliance upon the limited interest of the MIB Charitable Trust in the subject matter of the settlement, and upon the fact that both the Banjima People and the MIB People have approved the proposed settlement.

...

Put another way, given the history of the proceedings commenced by Mr Maitland Parker in 2012 and in particular the removal of the former trustee as a party to those proceedings at its request, there does not seem to me to be any practical means by which the Trustee could interfere with the proposed settlement in the absence of some allegation of impropriety or misconduct or breach of duty owed to the Trustee, and there is no such allegation. Even if there were such an allegation, the capacity of a non-party to interfere with the settlement of proceedings would have to be regarded as doubtful.

1. The relevant principles were also referred to by Gething J in Mainray Nominees v Stoate, at [30] through to [41] of that judgment.[15]
2. In Herbert v Blenkinsop, Allanson J said at [81]:[16]

The court is not assessing either the correctness of the trustee's decision or the reasonableness of the settlement as a decision in his discretion. But it should consider whether there has been sufficient consideration to enable the court to determine that the proposed settlement is justifiable as in the interest of all of the beneficiaries. Specifically, the court should consider whether counsel's opinion supports the propositions relied on in the settlement.

1. The question of whether there are underlying contested issues is a matter that has been the subject of judicial commentary and sometimes difficulty. In some instances, the level of contention or underlying dispute may lead a court to conclude that the dispute ought first to be resolved and to decline to give advice.
2. For example, in NSW Trustee and Guardian v Wardy at [4] ‑ [7], Slattery J said:[17]

The NSW Trustee acted reasonably in approaching the Court and has complied with applicable procedure. It has provided a written statement of facts as is generally contemplated by Trustee Act, s 63(3) upon which the Court is asked to give judicial advice. But the statement of facts reveals a dispute between the beneficiaries. It also reveals that the facts are complex, contentious and not readily subject to being succinctly distilled into the statement of facts. Where those circumstances present themselves, the Court may properly decline to give judicial advice: Macedonian Orthodox Community Church St Petkar Inc v His Eminence Petar Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 (Macedonian Orthodox) at [56] - [60] and Sotiropoulos (as executor of the estate of the late Maria Sotiropoulos) v Sotiropoulos [2015] NSWSC 855 (Sotiropoulos) at [9] - [15].

For reasons which will shortly be explained, the Court has concluded that the dispute between these parties is not apt for the Court to give judicial advice but should rather become the subject of a contested hearing. This approach more accurately reflects the nature and complexity of what is truly a contentious dispute.

Where an application for judicial advice is transformed into an application for substantive relief that would bind all interested parties, the proper course is for the Court to ensure that the proceedings are re‑constituted by joining the necessary parties, and by reformulating the originating process: see RL v NSW Trustee and Guardian (2012) 84 NSWLR 263; [2012] NSWCA 39 at [58] (per Campbell JA) and Sotiropoulos at [16].

This Court has decided to facilitate the reconstitution of these proceedings. It has allowed the parties a short adjournment this morning to re-formulate the originating process to present a contested application for substantive relief. The parties have achieved that in the course of the day. It is now approximately 4.00pm and Mr John Wardy proposes filing a Cross-Summons, which the Court will give leave for him to file.

1. Although the High Court said that there is no fetter on the discretion of the court to give advice in the context of adversarial proceedings, there is an important distinction to be borne in mind between the occasion or context in which the application is made on the one hand, and the nature and character of the application itself on the other. The occasion might arise in the context of an underlying dispute. The nature of the application is something else.
2. It is not the case that judicial advice is a forum or medium through which contested matters, including particularly serious contentions of wrongdoing, ought to be ventilated. It is a summary procedure to give protection to the trustee and the trust. That protection is itself shaped by the information provided by the trustee and what is characterised by the High Court as 'private advice'.
3. Counsel for the parties referred to and invested some considerable effort in discussing the approaches to substantive entitlements of beneficiaries to trust documents of various sorts. Counsel also discussed the entitlement to discovery under O 26 of the RSC for a process begun by originating summons, and the ability of the court to draw upon the substantive entitlements of beneficiaries for the production of documents in proceedings such as these. All of that was helpfully and carefully articulated by counsel.
4. At the end of the day however, it is the nature of this principal proceeding, the judicial advice application, that determines the appropriateness of the applications before me.
5. Given the nature of the judicial advice and character of the judicial advice procedure as described by the High Court and affirmed in various decisions of this court, I am not persuaded that the applications for production of documents in the various forms brought by the granddaughters are appropriate procedures in a judicial advice application of this nature, particularly when brought by the parties joined. As the High Court has explained, the parties are not entirely parties in the true sense. This is especially the case in relation to the first and fourth defendants. In respect of the first defendant, documents are sought relating to a different trust than the trust and trustee the subject of the judicial advice application. Documents are sought in relation to the fourth defendant as a party joined rather than as a party in the ordinary sense.
6. Again, I emphasise, that is not to say that the court would not accept in some other guise or forum that the allegations are arguable or fairly contended. The question here, however, is whether it is an appropriate order to be made in this proceeding. No other proceedings have been commenced to advance the allegations, and I am not persuaded that it is an appropriate use of proceedings under s 92 of the Trustees Act.
7. The granddaughters wish to obtain and then put before the court a range of documents from which they say inferences can already be drawn about the conduct of the first and fourth defendants, and the plaintiff. The documents they seek are largely to reinforce the cogency of those inferences. In my view, it is not an appropriate use of the s 92 procedure to order production so that a party joined can strengthen and reinforce inferences that it claims are already available, concerning an underlying dispute. If that were a proper use of the s 92 proceeding, it would create an open-ended ability to request documents to continuously strengthen the allegations sought to be made. Putting that to one side, fundamentally this is not a proceeding in which it is appropriate for those contentions to be investigated in any event.
8. Further, in my view, the categories of documents are too broad and do not reflect an appropriately confined or directed request. The categories are couched in broad terms. I appreciate that the granddaughters have sought to address that by a revised set of categories, but I do not think that goes anywhere near far enough to demonstrate an appropriately refined and directed application for the production of documents.
9. In addition, the categories raise a range of complex issues. These include the substantial entitlement of beneficiaries to different types of documents, questions of legal professional privilege and without prejudice and mediation privilege, and importantly, difficult issues about whether there is an entitlement on the part of discretionary beneficiaries.
10. The categories also raise issues concerning the entitlement of discretionary beneficiaries to certain trust documents, particularly documents that underlie or evidence the basis for the trustee's discretionary decision‑making. Discretionary beneficiaries do not generally enjoy that entitlement. The relevant trust deeds here also permit trustees to decline to provide such documents. That provides yet another layer of complexity and barrier to the appropriateness of the orders sought by the granddaughters.
11. A further reason relates to case management principles. With the matter listed for 1 May 2026, and the settlement having been entered into in mid‑March last year, I consider that it is not consistent with case management practices to permit such a wide-ranging and burdensome order for documents. As part of that, I am also mindful of the evidence put forward by the plaintiff of the financial and administrative burden of the document production, which in my view adds to the inappropriateness of the orders sought.
12. The final reason I would mention is the matter that I have already referred to, which is that there were no memoranda of conferral. Had the application had strong and clear merit, I may well have been prepared to overlook the absence of a memoranda of conferral; but in the circumstances, the absence of the memoranda is a further barrier to the making of the orders sought.
13. In brief summary, I dismiss the applications for production of documents against the plaintiff, and first and fourth defendants for the following reasons. The applications reflect an inappropriate use of an application for judicial advice under s 92. The categories are too broad and raise complex and difficult legal and factual issues. The application involves an undue financial and administrative burden at least on the plaintiff. There was no adequate conferral and no memoranda of conferral.

1. For the brief reasons I have given, all of the applications pursuant to the notices of motion filed by the sixth and seventh defendants will be dismissed.

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

[1] Plaintiff's Outline of Submissions Opposing Production Application (11 February 2026).

[2] Barnes v Addy (1874) LR 9 Ch App 244, 251 - 252.

[3] Affidavit of Mark Hamilton (5 February 2026) [4].

[4] Affidavit of Mark Hamilton (5 February 2026) [5].

[5] Written Submissions of the Sixth and Seventh Defendants Production of Documents by the First Defendant (30 January 2026).

[6] 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 (Macedonian Orthodox Community Church).

[7] Macedonian Orthodox Community Church [54].

[8] Macedonian Orthodox Community Church [61].

[9] Macedonian Orthodox Community Church [64].

[10] Macedonian Orthodox Community Church [65].

[11] Macedonian Orthodox Community Church [80].

[12] Australian Executor Trustees Ltd v Attorney General (WA) [2015] WASC 439 (Australian Executor Trustees v Attorney General): see, particularly, from [28].

[13] Australian Executor Trustees v Attorney General [32] - [33].

[14] Australian Executor Trustees v Attorney General [40], [47].

[15] Mainray Nominees Pty Ltd v Stoate [2025] WASC 145 [30] - [41].

[16] Jeffrey Laurence Herbert as trustee for Blenkinsop Family Trust as trustee for Blenkinsop Family Trust No 2 v Blenkinsop [2018] WASC 369 [81].

[17] NSW Trustee and Guardian v Wardy [2017] NSWSC 1466 [4] - [7].