Bigg v King [2020] TASSC 41

Supreme Court Civil Procedure Act 1932 (Tas), s 6(5), (6).

Supreme Court Rules 2000 (Tas), rr 90(f), (i), 604.

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42, 237 CLR 66, applied.

Re Johnson v Reed (1909) 5 TLR 92; Dobson v The Salvation Army Supreme Court of Tasmania 15/1983, referred to.

Judgment Number: [2020] TASSC 41

NEIL PATRICK BIGG and PETER ROYSTON WORRALL and

1. There are proceedings on foot brought by Jacqueline Louise King for orders seeking that probate of the will granted to Neil Patrick Bigg and Peter Royston Worrall be revoked, that they be removed as executors and trustees of the estate of the late Stephen James Atkinson, that SJA Custodians Pty Ltd be removed as trustee of SJA Trust, and Zealridge Custodians Pty Ltd be removed as trustee of S Atkinson Family Trust. Ms King is the wife of the late Mr Atkinson and under the will is the primary beneficiary. It is pleaded that Mr Bigg and Mr Worrall breached their duties and obligations in their capacity as executors of the estate and also in their capacity as the directors of the corporate trustees.
2. The respondents to those "removal proceedings" now bring an originating application for the determination of the following questions and/or directions:

"1 Whether, Neil Patrick Bigg and Peter Royston Worrall, SJA Custodians Pty Ltd, and Zealridge Custodians Pty Ltd are entitled to and should defend application number 2885 of 2019;

1. Whether the legal costs incurred by Neil Patrick Bigg and Peter Royston Worrall, SJA Custodians Pty Ltd, and Zealridge Custodians Pty Ltd in application 2885 of 2019 should be paid from the estate of Stephen James Atkinson and/or the SJA Trust and/or the S Atkinson Family Trust and if so, which and in what proportions;
2. Whether the legal costs incurred by Neil Patrick Bigg and Peter Royston Worrall, SJA Custodians Pty Ltd, and Zealridge Custodians Pty Ltd in continuing to defend application 2885 of 2019 should be paid from the estate of Stephen James Atkinson and/or the SJA Trust and/or the S Atkinson Family Trust and if so, which and in what proportions."

As the applicants in these proceedings, they seek answers and directions.

1. These reasons consider a preliminary issue as to this Court's jurisdiction to answer questions and provide directions. The applicants rely on a High Court decision of Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42, 237 CLR 66 (Macedonian Church) as providing guidance as to the applicable principles. In particular, the case is relied upon as clarifying that there is jurisdiction to give advice and directions, notwithstanding the adversarial nature of the proceedings.
2. Ms King argues that the High Court case does not assist on the jurisdictional question. The case was concerned with a different statutory provision, s 63 of the Trustee Act 1925 (NSW), and there is no equivalent provision that operates in Tasmania. Further, it was argued that here in Tasmania, the jurisdiction to give advice is questionable, and, if available, is limited to non-adversarial proceedings. There are jurisdictional limits established by authorities, particularly English cases, that have application. The courts do not make pre-emptive costs orders in litigation that challenge the acts or omissions of the trustee. The High Court did not cast aside these authorities, rather, they continue to apply to Australian jurisdictions such as Tasmania which do not have an expansive statutory provision like the New South Wales provision.
3. The applicants rely upon a number of statutory provisions as providing jurisdiction to the Court in a range of matters relating to estates and trust, including the giving of advice and directions. The applicants submit that the Court has general conferred jurisdiction by virtue of s 6(5) of the Supreme Court Civil Procedure Act 1932. The conferral of jurisdiction is demonstrated by the highlighted aspects of the section:

"6(5) The Court, and every judge thereof, shall, in relation to probate and letters of administration, have -

(a) all such voluntary and contentious jurisdiction and authority in relation to granting or revoking of probate and administration of the real and personal estates of deceased persons, as is vested in or exercisable by the Court at the commencement of this Act;

(b) within and with respect to this State, the like voluntary and contentious jurisdiction and authority in relation to granting and revoking of probate and administration of the effects of deceased persons, as at the commencement of the Imperial statute intituled the Court of Probate Act 1857 , was exercisable within and with respect to England, or any part thereof, by any court or person in England, together with full authority to hear and determine all questions relating to testamentary causes and matters."

Particularly relevant is the reference to "full authority to hear and determine all questions relating to testamentary causes and matters".

1. Also, the Court's powers to exercise the jurisdiction are provided for in s 6(5)(c):

"6(5)(c) like powers within and with respect to this State, in relation to the personal estate in this State of deceased persons, as the Prerogative Court of Canterbury had immediately before the commencement of the Imperial statute intituled the Court of Probate Act 1857 in the Province of Canterbury, or in the parts thereof within its jurisdiction, in relation to those testamentary causes and matters, and those effects of deceased persons, which were at that date within the jurisdiction of that court."

1. It can be seen that the section confers general jurisdiction, "like powers" and "authority" exercised in England before the commencement of the Imperial statute, the Court of Probate Act 1857, 20 & 21 Vict, c 77. These powers are picked up in the Imperial statute and conferred upon a new court known as the Court of Probate.
2. It is noted that s 6(6) of the Act provides for the making of procedural rules enabling the exercise of the jurisdiction and powers:

"6(6) Each of the jurisdictions referred to in this section which is required to be exercised (so far as regards procedure and practice) in the manner provided by this Act and the Rules of Court includes all judicial and ministerial powers, duties, and authorities incidental thereto."

1. As submitted by the applicants, the Rules of Court provide the mechanism by which the Court exercises the conferred general law jurisdiction and its powers within that jurisdiction. The Supreme Court Rules 2000 (SCR) and before those, the Supreme Court Rules 1965, O 65, elucidate the nature of the jurisdiction, powers and procedures contemplated by ss 6(5) and (6), in particular SCR, rr 90(f), 90 (i) and 604.
2. It is acknowledged by the applicants that the Rules of Court are "mere rules of procedure for carrying the Act into effect (s 187) and do not confer any new jurisdiction on the Court which does not already exist part from the rules": Re Hodges [1998] TASSC 96.
3. It appears that rr 90(f), 90(i) and 604 are applicable and are wide enough in their terms to encapsulate the judicial advice sought by the applicants. Particularly relevant is r 604 which provides:

(1) An application may be made for any relief which may be granted in an administration proceeding.

(2) A claim is not required to be made for the administration or execution under the direction of the Court of the estate or trust in respect of which relief is sought.

(a) the determination of any question which may be determined in an administration proceeding, including any question -

(i) arising in the administration of an estate or in the execution of a trust; or

(ii) as to the composition of any class of persons having a claim against an estate or a beneficial interest in an estate or in property subject to a trust; or

(iii) as to any right or interest of a person claiming to be a creditor of an estate or to be entitled under the will or on the intestacy of a deceased person or to be beneficially entitled under a trust; or

(b) an order directing an executor, administrator or trustee to -

(ii) pay funds of the estate or trust into Court; or

(i) approving any sale, purchase, compromise or other transaction by an executor, administrator or trustee; or

(ii) directing any act to be done in the administration of an estate or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed under the direction of the Court."

1. The applicants' submissions helpfully referred to an article by Chief Justice Kiefel AC in a recent paper, "Judicial Advice to Trustees: Its Origins, Purposes and Nature": [2019] MelbULawRw 26; (2019) 42(3) Melbourne University Law Review 993. The article discusses the nature and origin of the jurisdiction whereby judges give advice to a trustee on matters concerning the administration of trust estates or the interpretation of trust instruments.
2. It was noted that originally, the procedure for seeking advice required a trustee to commence an administration suit. The article noted at 995 that by the 19th Century, the supervisory jurisdiction of the courts was well-established and suits for the administration of trusts were commonplace. This was evidently a cumbersome procedure: 996. The Law of Property Amendment Act 1859, 22 & 23 Vict, c 35 (Lord St Leonards' Act) enabled trustees to file an application for the "opinion, advice or direction" of a judge on questions relating to the administration of trusts. It provided an indemnity to a trustee who acted on that advice. Parts of the Act were amended and new procedures were provided for by the Rules of the Supreme Court 1883 (UK), but the purpose of the new O 55, r 3 remained the same, to provide an alternative to a general administration suit. The article went on to note at 997:

"The Australian colonies followed suit - both with respect to enacting s 30 of the Lord St Leonards' Act and introducing rules of the court. Some states and territories later passed legislation which extended the jurisdiction of the courts in relation to the directions which might be given. The current position is not uniform. While Victoria, Tasmania and the Northern Territory have followed the English approach of retaining only rules derived from ord 55 r 3 29, (Footnote 29 provides: Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 54.02; Supreme Court Rules 2000 (Tas) r 04; Supreme Court Rules 1987 (NT) r 54.02) in New South Wales, the Australian Capital Territory, South Australia and Western Australia, there are both statutory procedures for seeking a judicial opinion, advice or directions, and procedures under court rules for seeking the determination of questions which could have been determined in administration proceedings 30 (Footnote 30 includes Trustee Act 1925 (NSW) s 63)."

1. As noted, the applicants rely on various other statutory provisions as providing specific jurisdiction in a wide range of matters relating to estates and trust, including jurisdiction to give advice and directions: s 64 of the Administration and Probate Act 1935, the Trustee Act 1898, ss 32, 50, 62, 63 and 64.
2. Submissions for Ms King highlighted a view expressed by Dal Pont and Mackie in their text Law of Succession (2nd ed) at [13.34] that s 64 of the Administration and Probate Act 1935 that empowers the court to make all such orders as may be necessary for the due administration of a deceased estate "arguably includes a power to give advice and directions".
3. It should be noted though that the authors do not express any doubt that, speaking generally of Australian States and Territories, that the court has jurisdiction to give advice and directions, referring to "various sources of this jurisdiction". The authors went on to state that court rules except in Queensland, "make provision for the grant of advice or directions without the need for an administration action" with a footnote to those rules, including SCR r 604.
4. The applicants draw attention to the text Equity and Trusts in Australia, Dal Pont and Chalmers (4th ed) at [23.170]. The authors begin by noting that some jurisdictions, such as Tasmania do not have a right in trustee legislation to seek advice on any question respecting the management or administration of the trust property. The authors go on to note that there is a similar right of trustees recognised at general law, which remains available in the Northern Territory and Tasmania with a footnote stating:

"180 Cf Dobson v Salvation Army (unreported, SC (Tas), Neasey J, 31 March 1983), who queries whether such a right existed independent of statute, but made a provisional determination of the matter raised on the originating summons before him."

1. It can be seen that while the authors refer to the existence of a right at general law which mirrors the right in trustee legislation, Dobson v The Salvation Army Supreme Court of Tasmania 15/1983, is cited as querying this proposition. In that case, Neasey J was concerned with an originating summons by the executors and trustees of a will applying under s 64 of the Administration and Probate Act 1955 as executors to pass the accounts of the estate and the commission. His Honour noted that:

"Unfortunately there is still no power under legislation in this State to enable a trustee to obtain such advice, opinion or discretion, contrary to the situation in all other States, Jacobs, op cit page 505 [referring to the 4th ed of Jacobs on the Law of Trusts in Australia, 4th edn. The powers given by O 65 r 1 of our Rules of Court are analogous but restrictive in scope. This is a matter, in my opinion, in which some action by way of law reform is overdue."

Having made those observations his Honour provided advice and adjourned the final disposition of substantive issues.

1. In the 4th edition of Jacobs, at page 505, [2128], it is noted that "In all States but Tasmania legislation gives the right to a trustee to apply to the court for its opinion, advice or direction." As can be seen from the quote, having referred to this text, Neasey J observed the powers under the Rules of Court are analogous to legislation in other States but restrictive. It seems those powers were regarded as adequate to enable the advice to be given but his Honour regarded reform as required. Notably, since then, the rules have been expanded in the SCR, see in particular, r 604.
2. There can be no doubt that the Court has the conferred power referred to in the Supreme Court Civil Procedure Act which provides a source of jurisdiction to provide advice and give directions. The SCR, particularly r 604, provide the procedure to enable the Court to exercise that jurisdiction.
3. Section 64 of the Administration and Probate Act providing the "Court may make all such orders as may be necessary for the due administration of the real and personal estate and effects of any deceased person" may provide an additional source of power to give judicial advice. The terms of s 50 of the Trustee Act 1898 specifically refer to whether the trustee obtained the directions of the court in the matter in which he committed such breach. The Trustee Act presupposes power to provide trustees with directions, presumably that which exists under the general law, and is conferred by the Supreme Court Civil Procedure Act and addressed in the Rules.
4. The question is whether the questions and advice sought fall outside the conferred power. In this regard the applicants rely upon Macedonian Church in which the High Court thoroughly explored the jurisdictional origin of and the powers to give advice and directions in probate, estate and trust matters.
5. In Macedonian Church, the appellant applied for judicial advice under s 63 of the Trustee Act 1925 (NSW) on two questions: first, as to whether it would be justified in defending proceedings brought against it seeking its removal as trustee on the basis of various allegations and second, whether it was entitled to indemnity from the assets of the trust for reasonable legal costs incurred by it in defending the proceedings. The judge at first instance answered the questions affirmatively. The New South Wales Court of Appeal reversed that decision on the basis that it was generally inappropriate for the Court to give judicial advice in respect of adversarial proceedings.
6. Section 63 is an extensive provision with 11 subsections. Subsection (1) provided that a trustee might apply to the Court for an opinion, advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.
7. In Macedonian Church at p 83, Gummow ACJ, Kirby, Hayne and Heydon JJ considered the origins of s 63, and noted that they lay in s 30 of the Lord St Leonards' Act and s 9 of the Law of Property Amendment Act 1860, 23 & 24 Vict, c 38. In 1925, amendments to s 63 made three major innovations. These are that advice on questions on "the interpretation of the trust instrument" could be given. Section 63(4) made it plain that it was possible for evidence to be adduced by affidavit or otherwise, and s 63(11) recognised that an express right of appeal might be created.
8. The plurality judgment considered an alternative means by which advice could be given to trustees which developed in England without an administration order: RSC 1883, O 55, r 3(e)-(g). I pause to note that it will be remembered that this is the means adopted in Tasmania in the SCR, r 604. Since then, in England this has been replaced by rules. An equivalent to the English rules was enacted in New South Wales.
9. The plurality judgment commented that while the legislative courses taken in England and New South Wales superficially diverged, in substance they became very similar. This is examined at [43]. The judgment went on to say that:

"[44] No doubt, as this Court has so often emphasised, close attention must be paid to the provisions which found the jurisdiction which is invoked. But divergences between the two legislative schemes must not be permitted to obscure some important and fundamental similarities between the two. In particular, examination of principles governing proceedings instituted under rules of court derived from O 55 r 3, applied in cases such as In re Beddoe; Downes v Cottam, In re Dallaway, dec'd and In re Evans, dec'd may provide useful guidance in considering how the powers given by s 63 of the Act should be exercised in a particular case." [Footnotes omitted.]

1. The plurality noted that the different provisions are directed to the same end:

"[45] Each provides for a procedure which, if adopted, will not only protect a trustee from later complaint that he or she should have acted otherwise, but also protect the trustee from personal liability for costs incurred. And where the question for the Court is whether the trustee would act properly in instituting or defending litigation, the answer given will necessarily affect the parties to that other litigation. In particular, the judicial advice proceedings may yield an order which will give one party to the litigation (the trustee) power to resort to a fund in order to meet the costs incurred in pursuit or defence of the litigation."

1. The judgment considered In re Beddoe [1896] 1 Ch 547. In that case, the Court of Appeal ordered that the trustee ought only to have the costs he would have incurred had he applied for leave to defend at the expense of the trust estate. The plurality judgment noted the Court of Appeal meant an application by originating summons under O 55, r 3. The cautionary words of Lindley LJ in In re Beddoe were set out:

"[A] trustee who, without the sanction of the Court, commences an action or defends an action unsuccessfully, does so at his own risk as regards the costs, even if he acts on counsel's opinion; and when the trustee seeks to obtain such costs out of his trust estate, he ought not to be allowed to charge them against his cestui que trust unless under very exceptional circumstances. If, indeed, the Judge comes to the conclusion that he would have authorized the action or defence had he been applied to, he might, in the exercise of his discretion, allow the costs incurred by the trustee out of the estate; but I cannot imagine any other circumstances under which the costs of an unauthorized and unsuccessful action brought or defended by a trustee could be properly thrown on the estate."

1. The judgment in Macedonian Church went on to state that that warning that trustees who become involved in litigation should seek the court's sanction is the significant, and in later years, influential, aspect of In re Beddoe. The plurality continued:

"Thus, as the Association pointed out, and the plaintiff did not deny, O 55 r 3 was a piece of legislation - delegated legislation in England - which was central to that aspect, and was later viewed in New South Wales by Nicholas and Harrington as being functionally equivalent to s 63." (The text referred to is HS Nicholas and H E Harrington in Trustee Acts of New South Wales, 1926.)

1. The judgment noted a dispute between the parties about the applicability of In re Dallaway [1982] 1 WLR 756, [1982] 3 All ER 118 involving an application by originating summons under the successor to O 55, r 3. This is set out as it has relevance to one of the arguments advanced for Ms King:

"[51] The primary point made by the plaintiffs was that the application in In re Dallaway was, in truth, an application for a pre-emptive costs order which should have been made to the court hearing the proceedings and not under the guise of an application for judicial advice from the court supervising the administration of the trust, because it deprived the plaintiffs of the protection which the adversarial proceedings of the former type of application would bring. "

1. The plurality judgment of the High Court went on to state:

"[52] This is not a dispute of any significance in light of the plaintiffs' concession that Palmer J had jurisdiction and the Court of Appeal majority's acceptance of it - in each case correctly, for reasons given below[71]. That being so, it is the circumstances of a particular application that matter; how other courts were struck by other applications is not decisive. As Nourse LJ said in In re Evans[72]: '[E]very application of this kind depends on its own facts and is essentially a matter for the discretion of the ... judge who hears it.' (Footnote (71) refers to [56]-[58] of the judgment.)

[53] All of this said, the ultimate duty of the judges below was to be derived from the applicable legislation of the Parliament of New South Wales ... where, as here, the legislation reflected and even copied laws enacted, or made, for identical or analogous circumstances in England, it was permissible and helpful to construe the New South Wales legislation with the benefit of the experience expressed in judicial observations on the English analogues."

1. The same judgment in Macedonian Church from [69] elucidated principles that have application to both legislative schemes in England, with relevance, as explained, to the scheme followed in Tasmania:
   • Provision was made for procedures of the kind embodied in the two legislative schemes because a person in a fiduciary position is not allowed to put himself in a position where his interest and duty conflict. But, persons who take on the onerous duty of being trustees are not expected to do any of the work at their own expense. They are entitled to be indemnified against the costs and expenses which they properly incur in the course of their office: [69].
   • By s 63 of the New South Wales legislation, provision is made for a trustee to obtain judicial advice about the prosecution or defence of litigation. This is in recognition of both the fact that the office of trustee is ordinarily a gratuitous office and the fact that a trustee is entitled to an indemnity for all costs and expenses properly incurred in performance of the trustee's duties: [71].
   • "Obtaining judicial advice resolves doubt about whether it is proper for a trustee to incur the costs and expenses of prosecuting or defending litigation. No less importantly, however, resolving these doubts means that the interests of the trust will be protected, the interests of the trust will not be subordinated to the trustee's fear of personal liability for costs.": [71].
   • It is not right to see a trustee's application for judicial advice about whether to sue or defend proceedings as directed only to the personal protection of the trustee. Proceedings for judicial advice have another and no less important purpose of protecting the interests of the trust: [72].
   • Deciding whether it would be proper for a trustee to defend proceedings instituted about the trust on an application for judicial advice is radically different from deciding the issues that are to be agitated in the principal proceeding. "The two steps are not to be elided. In particular, the judicial advice proceedings are not to be treated as a trial of the issues that are to be agitated in the principal proceedings.": [74].
2. As for the nature of the adjudication, the following principles were stated:
   • It is very common in judicial advice applications for the courts to be invited to give advice on the basis of contested or controversial material. These facts provided by the trustee are untested by adversarial procedure, and assumed by the Court to be true, although only for the purpose of giving advice: [79].
   • Some forms of advice about adversarial cases may be in the best interests of the trust estate: [107].
   • "There is nothing in s 63 which limits its application to 'non-adversarial' proceedings, or proceedings other than those in which the trustee is being sued for breach of trust, or proceedings other than those in which one remedy sought is the removal of a trustee from office.": [56].
3. It was argued for Ms King that the passage at [56] is ambiguous and that one way of reading the passage is that the words "other than" were intended to operate as an exception to the non-adversarial point. Grammatically, that cannot be correct, given the placement of the comma and the words "or proceedings". The simple point being made here is that there are no limiting words in s 63. As stated at [58], there is only one jurisdictional bar to s 63 relief and that is that the applicant must point to the existence of a question respecting the management or administration of the trust property or a question respecting the interpretation of the trust instrument.
4. Significance was attached by Ms King to the concession before Palmer J that he had jurisdiction, referred to in the judgment at [52], as set above at [33]. However, the plurality judgment made clear that the concession was correctly made for the reasons at [56]-[58]. The reasons in those passages make it clear there was no doubt that there was in fact jurisdiction in adversarial proceedings.
5. The alternative argument for Ms King was that if the correct interpretation of the passage at [56] is that there is jurisdiction to consider any application by a trustee for judicial advice, notwithstanding that the adversarial proceeding which gives rise to it alleges misconduct by the trustee, then that principle ought to be confined to s 63 of the New South Wales legislation.
6. The argument relied on reasoning of the plurality that relied on the particular terms of s 63 that contemplate controversy: [57]. However it must be borne in mind that that passage noted that the reasoning rests on a dual basis, the absence of limiting words and the particular terms of s 63.
7. The argument also relied on a footnote at the end of [57]:

"(77) So far as there is authority suggesting that it is beyond the power of the court to give advice to be used for 'adversarial purposes' or to decide a matter in issue between parties (eg Re Mary Hooper [1861] EngR 689; (1861) 29 Beav 656 [54 ER 782]), it dates from a time before the additional words were inserted into what is now s 63(1) and before s 63(8)-(10) were inserted - in the case of New South Wales, in 1925."

In contrast, it is pointed out that there is no operative statutory provision that is cast as widely as s 63.

1. I observe in relation to footnote (77) that doubt seems to be expressed as to whether there is clear authority that sets a limit on jurisdiction: "So far as there is authority suggesting that it is beyond the power of the court to give advice for 'adversarial purposes' or to decide a matter in issue between parties ...".
2. Re Hooper [1861] EngR 689; (1861) 29 Beav 656; 54 ER 782 was an early decision on s 30 of Lord St Leonards' Act. The Master of the Rolls, Sir John Romilly, considered a trustee's petition for the opinion of the court. Romilly MR refused to provide the advice and is reported as stopping the case "observing that the object of this clause was to assist trustees in the execution of the trusts, as to little matters of discretion; and that this was not a case of that description. That when, as in this case, a question arose as to the effect of a limitation in an instrument, it ought, for the assistance of the Court, to be argued by the opposite parties."
3. There is useful consideration of the English authority of Re Hooper in Plan B Trustees Ltd v Maitland Parker [2012] WASC 392 in which Edelman J draws attention to a reporting of that case in the Jurist Reports where what is recorded is that the court:

"cannot decide the question raised by this petition without hearing the arguments on both sides. I understand the object of the 30th section of the act to be to enable trustees and executors to come to this Court, upon petition, to obtain the advice and opinion of the Court upon some matters of discretion vested in them, but that it was not intended thereby to enable them, in this summary way, to determine questions of construction."

1. Edelman J treated Re Hooper as distinguishable for two reasons, the difference in the words used in the relevant provision of the Trustees Act 1962 (WA) from the words in Lord St Leonards' Act, and also the questions of construction were raised in Re Hooper as direct questions, not matters incidental to directions on a different issue. That second point of distinction resonates here. The question of removal is incidental to the question of advice which is whether the applicants are entitled to and should defend those proceedings.
2. Also resonating in this context is the distinction drawn by the plurality in Macedonian Church at [74]: "... deciding whether it would be proper for a trustee to defend proceedings instituted about the trust is radically different from deciding the issues that are to be agitated in the principal proceeding. The two steps are not to be elided."
3. The submissions for Ms King referred to the text Daniells Chancery Practice (1901) and a passage at 800 and in particular the proposition that "the procedure by originating summons is not applicable to the determination of questions involving charges of breach of trust..." and a footnote to two cases: Weall (1889) 37 WR 779 and Dowse v Gorton [1891] UKLawRpAC 14; [1891] AC 190 at 202 per Lord Macnaughten.
4. Before considering those cases, I make a general observation about the need for caution in distinguishing questions of jurisdiction and discretion. Language used by the courts such as "the procedure should not be used to determine questions..." does not necessarily convey a concern with jurisdiction. Rather, the court may be concerned to identify a discretionary consideration which assumes significance given the facts of that case.
5. In Weall, Kekewich J was concerned with a costs argument after a trial regarding whether expenses were improperly incurred by a trustee of a will. It is reported that counsel argued that they should be entitled to their costs as of right and that the proceedings ought to have been taken by originating summons. A remark by Kekewich J in response is reported, but does not appear in the reasons for judgment that "...if an originating summons had been brought asking me to charge your clients with breaches of trust, the first thing I should have done would have been to dismiss it." This remark has limited relevance to the proceedings in this case for judicial advice which do not involve the questions which will arise on the removal proceedings of whether there has been in fact a breach of trust.
6. The passage relied upon in Dowse v Gorton is in the speech of Lord MacNaughten at 202:

"Your Lordships are familiar with the distinction between the usual administration order and an order founded on breach of trust - a distinction in principle which is not affected by the recent changes in practice and procedure ... And, indeed, I apprehend it would not be competent for an applicant on an originating summons to ask for or obtain otherwise than by consent an order founded on breach of trust or inquiries pointing to wilful default."

1. However, again this passage does not identify a jurisdictional bar that has application in this case, for the reasons discussed. In the request for judicial advice, the applicants are not seeking an order founded on a breach of trust or founded on inquiries pointing to wilful default. Those are questions for the removal proceedings.
2. Finally, Ms King relies on a decision of the Full Court of this Court in Re Johnson v Reed (1909) 5 TLR 92. A trustee took out an originating summons under s 45 of the Trustee Act 1898 for the determination of questions or matters. The case and the reasons for dismissing the summons are set out in the reasons of Nicholls J, speaking for the Court:

"The case is that, in the course of administering the trust, the trustee is met by the fact that one of the beneficiaries, who has made a settlement of his share, now desires to repudiate it upon the grounds of constructive fraud and undue influence. In order to decide whether this new trust should be enforced or not it is necessary to determine numerous questions of fact, as to which there is contradictory evidence which could only be satisfactorily taken viva voce. Possibly it would be necessary to also cancel a deed. ... Here we are asked to decide a difficulty for a trustee, and, upon looking at it, find that it consists of the question whether a new trust created by deed by an adult beneficiary should be enforced or should be set aside for constructive fraud and undue influence. That is really a matter for trial upon accurately raised issues of fact. Also the setting aside of deeds for fraud or undue influence is plainly not within the scope of the relief intended to be given by s 45 of The Trustee Act."

1. This Tasmanian case is also distinguishable from the present case. The Court was being asked to decide a controversial question of fact as to whether there had been constructive fraud and influence, and also to set aside the deed. That bears no resemblance to the questions that have been asked here which is whether proceedings asserting improper conduct should be defended and if so, whether protection can be given in terms of costs. Again, the distinction drawn by the plurality in Macedonian Church is relevant; the two steps are not to be elided.
2. Indeed, it may be that the question in Re Johnson would fall outside the expansive terms of s 63 of the New South Wales legislation as well, but I do not need to decide that.
3. Ms King also argues that when substantive proceedings involve an application for the removal of a trustee, the trustee is not litigating to protect the assets of the trust. Consequently, there is no jurisdiction to entertain the judicial advice application. There was reliance on Application of Uncle's Joint Pty Ltd [2014] NSWSC 321 at [23] and the reference by Brereton J to a class of trustee litigation involving disputes between the trustee and one or more beneficiaries and the statement that "in this class of case, the trustee is not litigating to defend or enhance the trust assets, but only in his or her personal interests." The first point to make is that the classification was for the purpose of considering the exercise of discretion as to the advice that should be given, not as a jurisdictional bar. In fact, his Honour went on to note that typically, trustees will be allowed their costs out of the estate in this type of case only after the proceedings against them have been resolved in their favour.
4. The argument seems to be that if in the substantive proceedings the trustee is litigating to protect his personal interests that would have implications for jurisdiction. The second point to make is that this argument must be considered in light of the binding principles elucidated in Macedonian Church. As noted, there are two purposes of the jurisdiction exercised by the courts. It is not right to see a trustee's application for judicial advice about whether to sue or defend proceedings as directed only to the personal protection of the trustee. Proceedings for judicial advice have another and no less important purpose of protecting the interests of the trust: Macedonian Church at [71]-[72] and [109]-[110], and at [196] per Kiefel J, as her Honour then was. Judicial advice protects both the trustee and the trust by ensuring that the 'interests of the trust will not be subordinated to the trustee's fear of personal liability for costs.':[71] per Gummow ACJ, Kirby, Hayne and Heydon JJ, and at [196] per Kiefel J.
5. The argument for the applicants is that protection of the trusts is unambiguously a purpose behind seeking the advice although a collateral purpose is to protect the trustees. Further, the objective of protection of the trusts is demonstrated by the duties of the respondents to all beneficiaries in the context of the removal proceedings, and complex administration issues relating to both the estate and trusts. There are beneficiaries other than Ms King in relation to the estate, and a wide class of discretionary beneficiaries in relation to the trusts. In this case, in light of the principles in Macedonian Church, it does not appear that the application is in conflict with the objectives of judicial advice proceedings.
6. There is another argument advanced for Ms King regarding the questions for advice regarding costs. It is submitted that it is well-established that the courts do not make pre-emptive costs orders in litigation that challenged acts or omissions of the trustee. The argument seems to be, akin to that advanced in Macedonian and considered at [51], that the application is in reality an application for a pre-emptive costs order which should not be made under the guise of an application for judicial advice. Further, that the courts are opposed to making orders of this kind in favour of trustees in connection with proceedings that asserted a breach of trust or misconduct. In Re Beddoe [1892] UKLawRpCh 180; [1893] 1 Ch 547 at 562, Bowen LJ stated:

"The principle of law to be applied appears unmistakeably clear. A trustee can only be indemnified out of the pockets of his cestuis que trust against costs, charges, and expenses properly incurred for the benefit of the trust - a proposition in which the word 'properly' means reasonable as well as honestly incurred."

1. In Armitage v Nurse [1998] Ch 241 the Court of Appeal of the Chancery Division was concerned with a cross appeal with respect to an order for costs made after a trial of preliminary issues in an action for breach of trust brought by the plaintiff against the trustee. Millet LJ, with the concurrence of the other members of the court, said at 262:

"Trustees are entitled to a lien on the trust fund for the costs of successfully defending themselves against an action for breach of trust. That was the position in In re Spurling's Will Trusts as it was in Walters v Woodbridge (1878) 7 Ch D 504, which it followed. But on what principle can one justify their right to recoup themselves out of the trust fund for the costs of unsuccessfully defending themselves against such an action?"

1. I note that the judicial advice sought in this case as to costs is not confined to a pre-emptive costs order, rather, the advice sought is the general question whether costs of defending the proceedings should be paid from the estate. The answer to the question may be that it depends on the findings that are made. More significantly, in my view, the cases that are relied upon as authority that a pre-emptive costs order should not be made in connection with substantive proceedings involving disputes between the trustees and beneficiaries alleging improper conduct by a trustee or breach of trust are not defining jurisdictional limits. They do not suggest this is a jurisdictional bar. Rather, they are concerned with a matter of principle as to whether the protection should be given. Finally, I note the plurality reasons in Macedonian Church at [51]-[52], that make it clear that a dispute regarding an application for judicial advice regarding costs turns on its own facts and whether favourable advice should be given is a discretionary matter.
2. For the reasons I have given, I conclude that the Court has jurisdiction in relation to the application for judicial advice. Counsel have foreshadowed a second preliminary argument concerning discretionary considerations which needs to be considered. It may be that some of the arguments on the jurisdictional point will emerge again on the discretionary issue. I will hear from the parties regarding directions concerning matters such as service of the application and filing of any additional documents.